Weiss v. Cherno

9 A.D.2d 934, 197 N.Y.S.2d 435, 1959 N.Y. App. Div. LEXIS 5399

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1959
• Status: Published

Opinion

Appeal from a judgment, entered after trial before the court without a jury, upon a submission of controversy (Civ. Prae. Act, § 546), dismissing appellant’s claim and awarding damages to the respondent upon his cross elainl. The controversy concerned the priority of enforcible liens upon a bankrupt’s estate, as between appellant, a judgment creditor, and respondent, the trustee in bankruptcy. Judgment affirmed, with costs. No Opinion. Beldock, Üghetta and Hallinan, JJ., concur; Nolan, P. J., and Wenzel, J., dissent and vote to reverse the judgment and to dismiss the submission, with the following memorandum: The ease which the parties attempted to submit, and which is the basis for the judgment appealed from, was not accompanied with the affidavit required by section 546 of the Civil Practice Act nor Was the submission acknowledged or proved, and certified, as required by that section. Consequently, the filing of the ease was not a presentation of the controversy sufficient to Constitute it an action (see Civ. Prac. Act, § 547) in which a judgment could be entered. Neither was the purported action tried oh the Case alone, as the statute requires, nor was the trial held and judgment rendered in this court (Civ. Prac. Act, § 548). In our opinion, therefore, the judgment appealed from was erroneously entered and should be reversed. Furthermore, since the record discloses that the statement of facts contained in the case was not sufficient to enable the court to render judgment and that such statement was supplemented by the testimony of witnesses, the submission should be dismissed (Civ. Prac. Act, § 548).