Walteter v. Berman

Appellate Terms of the Supreme Court of New York

Walteter v. Berman

126 Misc. 589, 214 N.Y.S. 60, 1926 N.Y. Misc. LEXIS 594

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 5, 1926

StatusPublished

This text of 126 Misc. 589 (Walteter v. Berman) 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

Walteter v. Berman, 126 Misc. 589, 214 N.Y.S. 60, 1926 N.Y. Misc. LEXIS 594 (N.Y. Ct. App. 1926).

Pincite

Opinion

Per Curiam.

The pleadings and affidavits disclose that an issue of fact was presented, namely, whether the plaintiff was an owner in due course or not. The defendant was, therefore, entitled to a trial of such issue and the court’s disposition upon affidavits was unwarranted. On a motion of this character the function of the court is limited to ascertaining whether an issue is raised, and it has no right or authority to decide an issue of fact if existing. Judgment and order reversed, with ten dollars costs to appellant to abide the event.

All concur; present, Bijur, Delehanty and Wagner, JJ.

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Per Curiam.

The pleadings and affidavits disclose that an issue of fact was presented, namely, whether the plaintiff was an owner in due course or not. The defendant was, therefore, entitled to a trial of such issue and the court’s disposition upon affidavits was unwarranted. On a motion of this character the function of the court is limited to ascertaining whether an issue is raised, and it has no right or authority to decide an issue of fact if existing. Judgment and order reversed, with ten dollars costs to appellant to abide the event.

All concur; present, Bijur, Delehanty and Wagner, JJ.

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Bluebook (online)

126 Misc. 589, 214 N.Y.S. 60, 1926 N.Y. Misc. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walteter-v-berman-nyappterm-1926.