Jacobs v. Korpus

Appellate Terms of the Supreme Court of New York

Jacobs v. Korpus

128 Misc. 445

CourtAppellate Terms of the Supreme Court of New York

DecidedSeptember 15, 1926

StatusPublished

Cited by1 cases

This text of 128 Misc. 445 (Jacobs v. Korpus) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jacobs v. Korpus, 128 Misc. 445 (N.Y. Ct. App. 1926).

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Opinion

Per Curiam.

Plaintiff’s affidavit did not verify his cause of action, as required" by Rules of Civil Practice, rule 113. This must be done before defendant is called upon to present any affidavit in opposition. (State Bank v. Mackstein, 123 Misc. 416; Tidewater Oil Sales Corporation v. Pierce, 213 App. Div. 796.)

Upon proper papers a motion for summary judgment may be made under the rule, either in an action “ to recover a debt or liquidated demand,” and this seems to cover an action for services based on a quantum meruit. (Poland Export Corporation v. Marcus, 204 App. Div. 302; Title Guarantee & Trust Co. v. Smith, 215 id. 448; Norwich Pharmacal Co. v. Barrett, 205 id. 749; Runnacles v. Mesquita, L. R. 1 Q. B. D. 416.) The latter case does not appear to have been reversed, as appellant claims. The plaintiff had no basis for judgment under Rules of Civil Practice, rule 112.

Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellant to abide the event, and motion for judgment denied, with ten dollars costs.

Present — Cropsey, MacCrate and Lewis, JJ.

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Per Curiam.

Plaintiff’s affidavit did not verify his cause of action, as required" by Rules of Civil Practice, rule 113. This must be done before defendant is called upon to present any affidavit in opposition. (State Bank v. Mackstein, 123 Misc. 416; Tidewater Oil Sales Corporation v. Pierce, 213 App. Div. 796.)

Upon proper papers a motion for summary judgment may be made under the rule, either in an action “ to recover a debt or liquidated demand,” and this seems to cover an action for services based on a quantum meruit. (Poland Export Corporation v. Marcus, 204 App. Div. 302; Title Guarantee & Trust Co. v. Smith, 215 id. 448; Norwich Pharmacal Co. v. Barrett, 205 id. 749; Runnacles v. Mesquita, L. R. 1 Q. B. D. 416.) The latter case does not appear to have been reversed, as appellant claims. The plaintiff had no basis for judgment under Rules of Civil Practice, rule 112.

Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellant to abide the event, and motion for judgment denied, with ten dollars costs.

Present — Cropsey, MacCrate and Lewis, JJ.

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Bluebook (online)

128 Misc. 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacobs-v-korpus-nyappterm-1926.

Opinion

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