Liberman v. Zeigen

258 A.D. 893, 16 N.Y.S.2d 151, 1939 N.Y. App. Div. LEXIS 7471

Opinion

Action for money had and received. Defendants moved under rule 107, subdivision 6, of the Rules of Civil Practice, to dismiss the complaint on the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon. The motion was granted as to the defendant Bessie Zeigen but denied as to the defendant Samuel L. Zeigen, and the latter appeals. In our opinion the issues raised by appellant cannot be determined upon affidavits but must await the trial. Resettled order, in so far as appealed from, affirmed, with ten dollars costs and disbursements, with leave to appellant to answer within ten days from the entry of the order hereon. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.