Barrett v. Jacobs

• Decision Date: 19 February 1931
• Citation: Barrett v. Jacobs, 255 N.Y. 520 (N.Y. 1931)
• Court: New York Court of Appeals Court of Appeals
• Parties: ERNEST D. BARRETT et al., Respondents, v. SAMUEL K. JACOBS, Appellant.

255 N.Y. 520

175 N.E. 275

BARRETT et al.

v.JACOBS et al.

Court of Appeals of New York.

Feb. 19, 1931.

Action by Ernest D. Barrett and others against Samuel Keller Jacobs. An order of special term denying plaintiffs' application for summary judgment was reversed by the Appellate Division (231 App. Div. 745, 245 N. Y. S. 817), and defendant appeals.

Judgment of Appellate Division reversed, and order of Special Term affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

I. Maurice Wormser, Israel G. Ornstein, and Charles Fredericks, all of New York City, for appellant.

Joseph A. Fagnant, of New York City, for respondent.

PER CURIAM.

On an application for summary judgment under rule 113, Rules of Civil Practice, the only question is whether an unsubstantial formal defense has been interposed for purposes of delay. Judgment should not be granted, unless it is clear that plaintiff has made out a case on the undisputed material facts presented on the record by affidavit or other proof. Curry v. Mackenzie, 239 N. Y. 267, 269, 146 N. E. 375.

In this case it is not clear that the action was not prematurely brought; it is not clear that the respondents have earned their commissions under their contract of employment. It is significant, although not conclusive, that the trial justice and two justices of the Appellate Division were of the opinion that there were questions of fact to be tried. Respondents have an arguable defense on the record before us, and should not be deprived of a trial.

The judgment of the Appellate Division (231 App. Div. 745, 245 N. Y. S. 817) should be reversed and the order of the Special Term affirmed, with costs...