Curry v. Mackenzie
| Decision Date | 21 January 1925 |
| Citation | 239 N.Y. 267,146 N.E. 375 |
| Parties | CURRY v. MACKENZIE. |
| Court | New York Court of Appeals Court of Appeals |
Action by Wilfred J. Curry against James M. Mackenzie. From a judgment entered on an order of the Appellate Division of the Supreme Court (208 App. Div. 849, 204 N. Y. S. 901), reversing an order of the Special Term, and granting plaintiff's motion for summary judgment under civil practice rule 113, defendant appeals.
Judgment of Appellate Division reversed, and order of Special Term affirmed.
See, also, 239 N. Y. 509, 147 N. E. 173.
Appeal from Supreme Court, Appellate Division, Second Department.
James E. Woods, of New York City, for appellant.
Walter B. Hall, of New York City, for respondent.
[1] Civil practice rule 113 permits summary judgment at times in favor of a plaintiff, though material averments of his complaint have been traversed by the answer. To that end there must be supporting affidavits proving the cause of action, and that clearly and completely, by affiants who speak with knowledge. There must be a failure on the part of the defendant to satisfy the court ‘by affidavit or other proof’ that there is any basis for his denial or any truth in his defense. The case must take the usual course, if less than this appears. To justify a departure from that course and the award of summary relief, the court must be convinced that the issue is not genuine, but feigned, and that there is in truth nothing to be tried. General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133, 139 N. E. 216.
Plaintiff's complaint is in two causes of action, each growing out of the same transaction, though framed as a separate count. The first cause of action is for work done for the defendant and materials supplied to him by plaintiff's assignor, the Jersey City Dry Dock Company, between August 9, 1921, and September 13, 1922, in the construction of a gasoline yacht at his special instance and request. The reasonable and agreed value of the labor and materials is stated to be $3,277.88. The second cause of action is upon an account stated, which is said to have resulted from the retention by the defendant, without objection or correction, of an account current and bill of items. The defendant's answer is in substance a general denial.
Upon this motion for summary judgment, the plaintiff has submitted the affidavit of one Kolb, the secretary and treasurer of plaintiff's assignor. In support of the first cause of action the affiant states that the defendant was formerly the president of the Jersey City Dry Dock Company, and that while he was president the company built a gasoline yacht for him at its plant in Jersey City. Annexed to the affidavit is a list of the material used in the construction of this yacht, and of the labor there employed. The affiant states that he has carefully checked off the list, which gives no dates, though it does give quantities and values, and that the items there enumerated are the items actually paid. The defendant states in an opposing affidavit that the building of the yacht ‘was acquiesced in and consented to by the other officers and stockholders of the Jersey City Dry Dock Company;’ that ‘your deponent was allowed to proceed with the same’; and that ‘no account was kept of labor and material used in said construction.’ He says that on or about May 1, 1922, he ceased to be general manager, though remaining president, and was thereupon informed that ‘any further work on the yacht would have to be paid for by him,’ and that he did pay from that time.
We find here a controversy that can be composed only by a trial. The cost or value of what was done is an issue yet to be determined. If ‘no account was kept of material and labor used,’ the inference must follow that the list appended to the moving affidavit is either a fabrication altogether, or at best an uncertain estimate. There is no attempt to identify its total with the reasonable value, except to the extent that such identity may be gathered from the statement that it is the amount actually paid. The statement that it was paid, and paid for the defendant's yacht, goes back, however, for its support to the statement that the items making up to the total are the items of this account, and rejection of the one would carry with it as a consequence the rejection of the other. Failure to keep an account, an omission that would often be suspicious or unnatural, takes on another aspect when we recall that in the defendant's thought and expectation the service was to...
To continue reading
Request your trial
-
GMAC Mortg., LLC v. Winsome Coombs
...affd 57 N.Y.2d 848, 455 N.Y.S.2d 768, 442 N.E.2d 65 ; Rizzi v. Sussman, 9 A.D.2d 961, 195 N.Y.S.2d 672 ; see generally Curry v. Mackenzie, 239 N.Y. 267, 272, 146 N.E. 375 ). Under such circumstances a court may, in the provident exercise of its discretion, "deem[ ][the] defendant's answer a......
-
Fletcher v. Greiner
...be tried' summary judgment is properly granted." (Rubin v. Irving Trust Co., 305 N.Y. 288, 306, 113 N.E.2d 424 citing, Curry v. Mackenzie, 239 N.Y. 267, 270, 146 N.E. 375). For this purpose the Court is not limited to a consideration of the pleading itself. Indeed, it is incumbent on the Co......
-
Albert v. McGrath
...order to follow. 1 50 U.S.C.A.Appendix, §§ 1-6, 12. 2 Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. 3 Curry v. Mackenzie, 1925, 239 N.Y. 267, 146 N.E. 375, 376; Sartor v. Arkansas Natural Gas Corporation, 1944, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. 4 Fletcher v. Krise, 1941, 73......
-
St. Paul Fire and Marine Ins. Co. v. State
...damages which necessitate a plenary trial. (CPLR 3212; Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853; Curry v. Mackenzie, 239 N.Y. 267, 146 N.E. 375.) The State contends that: "(t)o reach the result desired by St. Paul in this case would mean that Tax Department official......