Tompkins Haulage Corp. v. Roberts

Appellate Terms of the Supreme Court of New York

Tompkins Haulage Corp. v. Roberts

140 Misc. 80

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1930

StatusPublished

This text of 140 Misc. 80 (Tompkins Haulage Corp. v. Roberts) 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

Tompkins Haulage Corp. v. Roberts, 140 Misc. 80 (N.Y. Ct. App. 1930).

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Opinion

Per Curiam.

Judgment and order unanimously reversed, upon the law, with costs to appellant, and motion for summary judgment denied. The affidavit in support of the motion was made by the attorney for the plaintiff. Assuming that he was familiar with the facts giving rise to plaintiff’s claim, he made no statement in his affidavit that there was no defense to the action. (Rules Civ. Prac. rule 113.) Moreover, the defendant in his affidavit alleged that the parties had stated an account between them and that the item sued for by plaintiff was included therein. While defendant did not plead the account stated as a defense, summary judgment cannot be awarded against him, since his affidavit discloses that it does exist. (Curry v. MacKenzie, 239 N. Y. 267.)

All concur; present, Cropsey, MacCrate and Lewis, JJ.

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Per Curiam.

Judgment and order unanimously reversed, upon the law, with costs to appellant, and motion for summary judgment denied. The affidavit in support of the motion was made by the attorney for the plaintiff. Assuming that he was familiar with the facts giving rise to plaintiff’s claim, he made no statement in his affidavit that there was no defense to the action. (Rules Civ. Prac. rule 113.) Moreover, the defendant in his affidavit alleged that the parties had stated an account between them and that the item sued for by plaintiff was included therein. While defendant did not plead the account stated as a defense, summary judgment cannot be awarded against him, since his affidavit discloses that it does exist. (Curry v. MacKenzie, 239 N. Y. 267.)

All concur; present, Cropsey, MacCrate and Lewis, JJ.

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Bluebook (online)

140 Misc. 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tompkins-haulage-corp-v-roberts-nyappterm-1930.

Opinion

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