Barrett v. Jacobs

N.Y.

Court: New York Court of Appeals

Citations: 255 N.Y. 520, 175 N.E. 275, 1931 N.Y. LEXIS 709

Decision Date: 2/19/1931

Jurisdiction: NY

Bluebook Citation: Barrett v. Jacobs, 255 N.Y. 520, 175 N.E. 275, 1931 N.Y. LEXIS 709 (1931)

More Cases: N.Y. decisions from 1931

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N.Y. App. Div.40

N.Y. Sup. Ct.28

N.Y. Civ. Ct.8

N.Y.4

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Cites 1 case

Curry v. Mackenzie

Counts reflect decisions in the CiteLaw corpus and may lag very recent opinions.

Opinion

Ernest D. Barrett et al., Respondents, v. Samuel K. Jacobs, Appellant.

Attorneys

I. Maurice Wormser, Israel Q. Ornstein and Charles Fredericks for appellant.
Joseph A. Fagnani for respondents.

majority 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.)

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 should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.