Freund v. James McCullagh, Inc.

268 A.D. 875, 50 N.Y.S.2d 740, 1944 N.Y. App. Div. LEXIS 3999

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1944
• Status: Published

Opinion

In an action to recover an installment of interest due on a bond, plaintiff’s motion to strike out the answer and for summary judgment was granted. Order granting plaintiff’s motion for summary judgment, and the judgment entered thereon, reversed on the law, without costs, and the motion denied, without costs, but without prejudice to renewal. The moving papers are defective and the defects were urged in the court below. The affidavit in support of the motion was made by plaintiff’s attorney, who fails to state that he has knowledge of the facts, and fails to state his belief that there is no defense to the action. (Universal Credit Co. v. Uggla, 248 App. Div. 848; First Trust & Deposit Co. v. Holt & Thomas, Inc., 236 App. Div. 714.) Carswell, Johnston and Adel, JJ., concur; Close, P. J., and Hagarty, J., dissent and vote to affirm the order and the judgment on the ground that the allegations in the affidavit of plaintiff’s attorney are sufficient to comply with rule 113 of the Rules of Civil Practice.