Morgan v. Springer

12 A.D.2d 626, 208 N.Y.S.2d 993, 1960 N.Y. App. Div. LEXIS 6702

Opinion

In an action to recover amounts allegedly due under a separation agreement between plaintiff and defendant, formerly husband and wife, in which the complaint pleads two causes of action, the defendant husband appeals: (1) from so much of an order of the County Court, Westchester County, dated June 30, 1959, as grants plaintiff’s motion for summary judgment on the second cause of action, pursuant to rule 113 of the Rules of Civil Practice; and (2) from an order of the same court, dated July 29, 1959, denying his motion for reargument. Order, dated June 30, 1959, insofar as appealed from, reversed, without costs; and plaintiff’s motion for summary judgment with respect to the second cause of action, denied. Although defendant’s affidavits fail to state facts which would constitute a defense to the causes of action alleged against him, plaintiff’s affidavit and the other affidavit and papers submitted are insufficient to warrant the court, as a matter of law, in directing judgment in favor of plaintiff as to the second cause of action (see Rules Civ. Prac., rule 113). Appeal from order, dated July 29, 1959, denying reargument, dismissed, without costs, as academic. Nolan, P. J., Beldock, Christ and Pette, JJ., concur; Brennan, J., not voting.