De Huff v. Bulova Fund, Inc.

• Court: New York Supreme Court
• Writing for the Court: OWEN McGIVERN
• Citation: De Huff v. Bulova Fund, Inc., 231 N.Y.S.2d 928, 36 Misc.2d 28 (N.Y. Sup. Ct. 1962)
• Decision Date: 29 June 1962
• Parties: Helene H. DE HUFF, Plaintiff, v. BULOVA FUND, INC., Bulova Watch Company, Inc., Emily Bulova Henshel and Louise Guiden, individually and as Executrices under the Last Will and Testament of Arde Bulova, Deceased, James Amzalak, Harry B. Henshel, Morgan Guaranty Trust Company of New York and Manufacturers Trust Company, Defendants.

Page 928

231 N.Y.S.2d 928

36 Misc.2d 28

Helene H. DE HUFF, Plaintiff, v. BULOVA FUND, INC., Bulova Watch Company, Inc., Emily Bulova Henshel and Louise Guiden, individually and as Executrices under the Last Will and Testament of Arde Bulova, Deceased James Amzalak, Harry B. Henshel, Morgan Guaranty Trust Company of New York and Manufacturers Trust Company, Defendants.

Supreme Court, Special Term, New York County, Part I.

June 29, 1962.

Sol E. Flick, New York City, for defendants, Bulova Watch Company & Harry B. Henshel.

Hennefeld & Riposanu, New York City (Edmund B. Hennefeld, New York City, of counsel), for plaintiff.

Phillips, Nizer, Benjamin, Krim & Ballon New York City (Simon Rose, Julius S. Chase, Morton Freilicher, New York City, of counsel), for defendants Emily Bulova Henshel, Louise Guilden, and Bulova Fund, Inc.

Kelley, Drye, Newhall & Maginnes, New York City, for defendant, Manufacturers Hanover Trust Company.

OWEN McGIVERN, Justice.

This is a motion for total or partial summary judgment by plaintiff against defendant Bulova Fund, Inc., hereinafter referred to as 'the Fund', and against defendants Henshel and Guilden, individually and as executrices, hereinafter referred to as 'the Executrices'; the motion is based on the first four causes of action only.

The action involves 3,000 shares of Bulova Watch Co. common stock claimed to have been deposited by plaintiff with the Executrices' decedent as security for a loan made by decedent to plaintiff. The stock was registered in plaintiff's name, and was accompanied by stock powers signed by her. Four days before decedent's death, the stock was given to the Fund by someone acting in decedent's behalf. In his will, decedent forgave all indebtedness of plaintiff to him.

The foregoing is all established by the documentary evidence annexed to the moving affidavits and by admissions contained in the answers of the Executrices and of the Fund and in a letter of their counsel.

The defendants against whom summary judgment is sought do not dispute any of the foregoing facts, but deny knowledge of many of them. It appears, however, that there has been an exhaustive search of decedent's papers, and much of the documentary evidence came therefrom. Other documentary evidence came from other sources equally available to both sides. Under such circumstances, there is no merit to the pleas of the Executrices and the Fund that summary judgment may not be granted against a party ignorant of the facts. (Shientag, Summary Judgment, p. 83.)

Nor is there reason to believe that any additional evidence can be found. No request is made by the Executrices and the Fund for an examination before trial of plaintiff and no other possible witnesses are suggested by them. They say that the agreement between plaintiff and decedent may have been modified, but fail to point to any possible source of proof thereof.

The Executrices and the Fund argue that plaintiff's affidavits may not be considered, insofar as they deal with personal transactions...