Valerioti v. Estate of Brandenburg

Order entered on May 29, 1969, granting summary judgment to plaintiff and denying defendant’s motion for summary judgment unanimously modified on the law to deny summary judgment to plaintiff, and otherwise affirmed with $50 costs and disbursements to the appellant. The action is against an administratrix upon a cheek signed by the deceased. The check was issued nearly four years before suit was brought. The defendant denies any knowledge of the circumstances under which the check was issued. Here the facts are peculiarly within the knowledge of the plaintiff and defendant is without information to contest plaintiff’s allegations. The plaintiff should be required to establish his claim by testimony subject to cross-examination. Concur — Capozzoli, J. P., Nunez, McNally, Steuer and Tilzer, JJ.