Irving Gostin v. Jules Nelson, and Josef Hoffman, D/B/A Merit Associates, and Individually

Third Circuit

Irving Gostin v. Jules Nelson, and Josef Hoffman, D/B/A Merit Associates, and Individually

363 F.2d 371, 11 Fed. R. Serv. 2d 1269, 1966 U.S. App. LEXIS 5532

Court of Appeals for the Third Circuit·Decided July 11, 1966·No. 15670_1·Published·Cited by 17 cases

Opinion

OPINION OF THE COURT

PER CURIAM.

This action for breach of contract came before the court below on successive motions filed by the appellee under Fed.Rules Civ.Proc., rule 56, 28 U.S.C.A. After the entry of a partial judgment on the issue of liability the court entered a final judgment in favor of the appellee on the issue of damages. On this appeal the appellant contests only the latter judgment.

The appellee’s second motion was predicated on the appellant’s answers to interrogatories. These answers furnished an adequate basis for the assessment of damages. The appellant filed a counter-affidavit, the relevant portions of which were based entirely on information and belief and not on personal knowledge. Since the counter-affidavit did not meet the requirements of subdivision (e) of the said rule, as amended, the court properly disregarded it and entered judgment for the appel-lee. Durovic v. Palmer, 342 F.2d 634 (7th Cir. 1965); F. S. Bowen Electric Co. v. J. D. Hedin Construction Co., 114 *372 U.S.App.D.C. 361, 316 F.2d 362 (1963) ; Hoston v. J. R. Watkins Company, 300 F.2d 869 (9th Cir. 1962).

The judgment of the court below, D.C., 41 F.R.D. 48, will be affirmed.

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OPINION OF THE COURT

PER CURIAM.

This action for breach of contract came before the court below on successive motions filed by the appellee under Fed.Rules Civ.Proc., rule 56, 28 U.S.C.A. After the entry of a partial judgment on the issue of liability the court entered a final judgment in favor of the appellee on the issue of damages. On this appeal the appellant contests only the latter judgment.

The appellee’s second motion was predicated on the appellant’s answers to interrogatories. These answers furnished an adequate basis for the assessment of damages. The appellant filed a counter-affidavit, the relevant portions of which were based entirely on information and belief and not on personal knowledge. Since the counter-affidavit did not meet the requirements of subdivision (e) of the said rule, as amended, the court properly disregarded it and entered judgment for the appel-lee. Durovic v. Palmer, 342 F.2d 634 (7th Cir. 1965); F. S. Bowen Electric Co. v. J. D. Hedin Construction Co., 114 *372 U.S.App.D.C. 361, 316 F.2d 362 (1963) ; Hoston v. J. R. Watkins Company, 300 F.2d 869 (9th Cir. 1962).

The judgment of the court below, D.C., 41 F.R.D. 48, will be affirmed.

Irving Gostin v. Jules Nelson, and Josef Hoffman, D/B/A Merit Associates, and Individually, 363 F.2d 371, 11 Fed. R. Serv. 2d 1269, 1966 U.S. App. LEXIS 5532 (3d Cir. 1966).

Pincite

363 F.2d 371 (Irving Gostin v. Jules Nelson, and Josef Hoffman, D/B/A Merit Associates, and Individually) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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