Raybin v. Raybin

• Court: New York Supreme Court — Appellate Division
• Citation: Raybin v. Raybin, 224 N.Y.S.2d 165, 15 A.D.2d 679 (N.Y. App. Div. 1962)
• Decision Date: 29 January 1962
• Parties: Elizabeth RAYBIN, as Executrix of the Last Will and Testament of Jack Raybin, deceased, Respondent, v. Stanley RAYBIN, Appellant.

Page 165

224 N.Y.S.2d 165

15 A.D.2d 679

Elizabeth RAYBIN, as Executrix of the Last Will and Testament of Jack Raybin, deceased, Respondent, v. Stanley RAYBIN, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 29, 1962.

Smyth & Levin, Ossining, for appellant; Daniel G. Levin, Ossining, of counsel.

Peter R. Biondo, Ossining, for respondent; Stanley I. Kirwin, of counsel.

Before BELDOCK, P. J., and CHRIST, HILL, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action by the executrix of decedent's estate to recover $6000 which decedent is alleged to have loaned his son, the defendant herein, said defendant appeals from an order of the County Court, Westchester County, made and entered September 5, 1961, which granted plaintiff's motion for partial summary judgment in the amount of $5,000 and severed and continued the action as to the balance of the claim.

Order reversed with ten dollars costs and disbursements, and motion denied.

In our opinion, the record discloses triable issues of fact which should await a trial. Evidence which might be excluded on a trial pursuant to section 347 of the Civil Practice Act, while not to be used as the basis for granting summary judgment in favor of the party who offers such evidence (Ditkoff v. Prudential Sav. Bank, 245 App.Div. 748, 280 N.Y.S. 437), may nevertheless be considered in ascertaining whether a triable issue exists and may be utilized as the basis for denying summary judgment to such party (...