First Trust & Deposit Co. v. Dent

263 A.D. 1058, 34 N.Y.S.2d 282, 1942 N.Y. App. Div. LEXIS 8023

Opinion

Order reversed, without costs of this appeal to either party, and motion denied, without costs. Memorandum: We think the affidavits read by the plaintiff on the motion to dismiss the complaint and for summary judgment raised a triable issue of fact on the question as to whether or not the defendant remained continuously absent from the State of New York for the space of one year or more. (Civ. Prae. Act, § 19.) The credibility of the affiants is for the jury. (Bernstein v. Kritzer, 224 App. Div. 387, 389; Airflow Taxi Corporation v. C. I. T. Corporation, 258 id. 857; Gravenhorst v. Zimmerman, 236 N. Y. 22.) The plaintiff was not required to establish its defense to the motion by a preponderance of proof. The plaintiff’s affidavits show that the issue as to the continuous absence of the defendant from the State for one year or more is “ not feigned but genuine.” (Connor v. Commercial Travelers M. A. Assn. of America, 247 App. Div. 352, 353.) We are not required to decide, and we do not decide, any other question presented by the affidavits read on the motion. AH concur. (The order grants defendant’s motion for summary judgment on the pleadings in an action on a promissory note.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and Hams, JJ.