Tymon v. Tyrose Homes, Inc.

253 A.D. 900, 1938 N.Y. App. Div. LEXIS 9175

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1938
• Status: Published

Opinion

In an action to enforce a lien upon real property and for other relief, order granting summary judgment dismissing the complaint as to respondent Tyrose Homes, Inc., and canceling the lis pendens, affirmed, with ten dollars costs and disbursements. Appeal from judgment dismissed. The judgment is not printed in the record. Defendant Tyrose Homes, Inc., has set forth evidentiary facts, including documents, sufficient to defeat the action as to it, and plaintiff has failed to show by affidavit or other proof facts sufficient to entitle him to a trial. Lazansky, P. J., Carswell, Davis and Johnston, JJ., concur; Taylor, J., dissents, with the following memorandum: Although application for summary judgment in favor of a defendant in this form of action is now in order (Lederer v. Wise Shoe Company, Inc., 276 N. Y. 459), I am -of opinion that the moving and opposing papers disclose a situation involving the counterpart of the “ arguable defense” mentioned in Barrett v. Jacobs (255 N. Y. 520), and that this is essentially a case for trial rather than for summary disposition.