Waldenmaier v. Jones

Appellate Division of the Supreme Court of New York

Waldenmaier v. Jones

37 A.D.2d 828, 325 N.Y.S.2d 269, 1971 N.Y. App. Div. LEXIS 3202

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

DecidedOctober 26, 1971

StatusPublished

This text of 37 A.D.2d 828 (Waldenmaier v. Jones) 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

Waldenmaier v. Jones, 37 A.D.2d 828, 325 N.Y.S.2d 269, 1971 N.Y. App. Div. LEXIS 3202 (N.Y. Ct. App. 1971).

Pincite

Opinion

Order, Supreme Court, Bronx County, entered on April 6, 1971, insofar as appealed from, unanimously modified, on the law, so as to deny summary judgment on the third and fifth causes of action, and otherwise affirmed. Defendant-appellant-respondent shall recover of plaintiffs-respondents-appellants $50 costs and disbursements of this appeal. There are too many, cross currents and inherent difficulties of proof to warrant any summary treatment of this litigation. All the principals being dead, a trial will be difficult enough. A disposition 'based on papers, none of them authored by a party, and involving so many issues of credibility, is unacceptable. The rule is clear that a court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine but feigned. (Curry v. MacKensie, 239 N. Y. 267, 269-270.) Concur—MeGivern, J. P., Nunez, Kupferman, Tilzer and Eager, JJ.

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Order, Supreme Court, Bronx County, entered on April 6, 1971, insofar as appealed from, unanimously modified, on the law, so as to deny summary judgment on the third and fifth causes of action, and otherwise affirmed. Defendant-appellant-respondent shall recover of plaintiffs-respondents-appellants $50 costs and disbursements of this appeal. There are too many, cross currents and inherent difficulties of proof to warrant any summary treatment of this litigation. All the principals being dead, a trial will be difficult enough. A disposition 'based on papers, none of them authored by a party, and involving so many issues of credibility, is unacceptable. The rule is clear that a court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine but feigned. (Curry v. MacKensie, 239 N. Y. 267, 269-270.) Concur—MeGivern, J. P., Nunez, Kupferman, Tilzer and Eager, JJ.

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Bluebook (online)

37 A.D.2d 828, 325 N.Y.S.2d 269, 1971 N.Y. App. Div. LEXIS 3202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waldenmaier-v-jones-nyappdiv-1971.

Opinion

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