Rifkin v. Safenovitz.

Decision Date30 November 1944
Citation40 A.2d 188,131 Conn. 411
CourtConnecticut Supreme Court
PartiesRIFKIN v. SAFENOVITZ.

OPINION TEXT STARTS HERE

Appeal from Superior Court, New London County; Murphy, Judge.

Action upon an escrow agreement by Rose Rifkin against Samuel I. Safenovitz, wherein plaintiff moved for summary judgment and defendant filed an affidavit of defense and cross-complaint seeking interpleader. The trial court ordered defendant's affidavit stricken from the files and rendered judgment for plaintiff, from which defendant appeals.

Error, judgment set aside, and cause remanded with directions.

Arthur F. Libby, of Norwich (Samuel I. Safenovitz, of Norwich, on the brief), for appellant (defendant).

David M. Rosen, of Stamford, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

The plaintiff brought this action to recover from the defendant a sum amounting to about $3500, claimed to be due underthe terms of a receipt signed by the defendant, a copy of which was annexed to the complaint. It acknowledged that the defendant had received from the Ace Woolen Company $3675 ‘to be held in escrow’ upon the terms stated in it; it recited that, ‘whereas' the company had been awarded a government contract for the manufacture of woolen textiles and ‘whereas Irving N. Rifkin is to render services to the Ace Woolen Company,’ the defendant agreed to pay Rifkin a sum equal to 3 per cent of the value of textiles accepted by the United States government under the contract for their manufacture, subject to certain deductions; and that, if Rifkin was inducted into the military service, then the money would be paid to his wife, the plaintiff, ‘under the same terms and conditions as hereinabove provided’; but that in no circumstances should the sum paid to either Rifkin or his wife exceed ‘the total sum of the amount deposited in escrow’ with the defendant.

The plaintiff filed a motion for a summary judgment, with affidavit; the defendant filed an affidavit of defense, which on motion was stricken out; and judgment was rendered for the plaintiff. For a reason which will appear, we do not need to do more than note these proceedings, beyond this: The trial court has found that, upon a hearing on the motion to strike out the affidavit of the defendant, he admitted that the goods had been accepted by the government and the company had been paid for them. On the defendant's motion, the judgment was opened because of a defect in the plaintiff's affidavit. She filed another affidavit in proper form. Thereafter the defendant filed an affidavit setting up several defenses. One was that he was a mere stakeholder, that he had been notified by the company not to pay any of the money to Rifkin, who had not then entered military service, because of his failure to perform services ‘in accordance with the agreement,’ that the defendant was ready to pay the money to the person entitled to it and that he had filed the motion and cross-complaint referred to below; and another defense was that ‘the plaintiff did not render services as required’ and that there was a failure of consideration. On the same day on which the defendant filed the affidavit, he also filed a motion that the company be cited in as a defendant and ordered to interplead with the plaintiff under a cross-complaint which was also filed. The cross-complaint alleged that the defendant was a mere stakeholder and that the company claimed the money on the ground that there had been a failure of consideration, and it prayed judgment that the plaintiff and the company be ordered to interplead. No action was taken by the court with reference to the motion. The plaintiff moved to strike out the affidavit of defense substantially upon the ground that under the terms of the receipt the money was due the plaintiff upon the acceptance of the textiles by the United States government and that the defendant could not claim a lack of consideration. The trial court granted this motion and struck out the affidavit as frivolous and made only for purposes of delay.

The defendant claims that the nature of this action is such that it does not fall within the provisions of § 52 of the Practice Book 1934, p. 34, which authorizes summary judgments. Whether or...

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18 cases
  • Madden v. Deere Credit Services, Inc.
    • United States
    • Alabama Supreme Court
    • April 24, 1992
    ...calculations from factors which are or ought to be in the possession or knowledge of the party to be charged.' Rifkin v. Safenovitz, 131 Conn. 411, 414, 40 A.2d 188 (1944) quoting Cochrane v. Forbes, 267 Mass. 417, 420, 166 N.E. 752 (1929); see Perri v. Cioffi, 141 Conn. 675, 678, 109 A.2d ......
  • Kasowitz v. Mutual Const. Co.
    • United States
    • Connecticut Supreme Court
    • March 9, 1967
    ...911. 'If it appears that upon full inquiry a defense would not be found to exist, a summary judgment is warranted. Rifkin v. Safenovitz, 131 Conn. 411, 416, 40 A.2d 188.' Rathkopf v. Pearson, The defendant urges that it is the principal employer of the plaintiff in accordance with the provi......
  • Jensen v. Nationwide Mut. Ins. Co.
    • United States
    • Connecticut Supreme Court
    • May 9, 1969
    ...summary judgment on the original complaint was correct. See Rathkopf v. Pearson, 148 Conn. 260, 264, 170 A.2d 135; Rifkin v. Safenovitz, 131 Conn. 411, 416, 40 A.2d 188. The plaintiffs make the additional claim that the trial court should have refused to entertain the action for a declarato......
  • Rathkopf v. Pearson
    • United States
    • Connecticut Supreme Court
    • April 11, 1961
    ...1215. If it appears that upon full inquiry a defense would not be found to exist, a summary judgment is warranted. Rifkin v. Safenovitz, 131 Conn. 411, 416, 40 A.2d 188. If the facts set forth in the counter affidavit show a defense, then the counter affidavit should not be stricken. Perri ......
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1 books & journal articles
  • Is Administrative Summary Judgment Unlawful?
    • United States
    • Harvard Journal of Law & Public Policy Vol. 44 No. 1, January 2021
    • January 1, 2021
    ...405-06 (1958) (quoting Conn. Gen. Stat. [section] 7655, amended by Conn. Gen. Stat. [section] 3129D (Supp. 1955)); Rifkin v. Safenovitz, 40 A.2d 188, 189 (Conn. 1944) (holding that an action qualified for summary judgment under Connecticut Practice Book [section] 52 because it was "one to r......

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