Tymon v. Tyrose Homes, Inc.

254 A.D. 591, 1 N.Y.S.2d 974, 1938 N.Y. App. Div. LEXIS 6684

Opinion

On the court’s own motion, the decision of this court handed down on February 4, 1938 [253 App. Div. 900], is hereby amended to read as follows: In an action to enforce a lien upon real property and for other relief, order and judgment affirmed, with costs. 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 Co., 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. [See ante, p. 582.]