Moran v. Van Dyk

Appellate Division of the Supreme Court of New York

Moran v. Van Dyk

236 A.D. 463, 260 N.Y.S. 12, 1932 N.Y. App. Div. LEXIS 5997

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 28, 1932

StatusPublished

This text of 236 A.D. 463 (Moran v. Van Dyk) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moran v. Van Dyk, 236 A.D. 463, 260 N.Y.S. 12, 1932 N.Y. App. Div. LEXIS 5997 (N.Y. Ct. App. 1932).

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Opinion

O’Malley, J.

The written guaranty upon which, defendant is sought to be held was, by its terms, revocable at the will of the defendant. His defense that his revocation became effective before any liability arose under the terms of the guaranty has ample support in the affidavits submitted in opposition to plaintiff’s motion for summary judgment. The supporting proof shows that the revocation was by letter duly and timely mailed. Presumption of its receipt in due course by plaintiff’s assignor is not overcome as a matter of law by mere denial thereof. An issue of fact requiring submission to a jury is presented.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Finch, P. J., Merrell, Sherman and Townley, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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O’Malley, J.

The written guaranty upon which, defendant is sought to be held was, by its terms, revocable at the will of the defendant. His defense that his revocation became effective before any liability arose under the terms of the guaranty has ample support in the affidavits submitted in opposition to plaintiff’s motion for summary judgment. The supporting proof shows that the revocation was by letter duly and timely mailed. Presumption of its receipt in due course by plaintiff’s assignor is not overcome as a matter of law by mere denial thereof. An issue of fact requiring submission to a jury is presented.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Finch, P. J., Merrell, Sherman and Townley, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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Bluebook (online)

236 A.D. 463, 260 N.Y.S. 12, 1932 N.Y. App. Div. LEXIS 5997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moran-v-van-dyk-nyappdiv-1932.