E. F. Hutton & Co. v. United Apple Sales, Inc.

Order, Supreme Court, New York County, entered on February 1, 1972, denying plaintiff’s motion for summary judgment, unanimously reversed, on the law, and the motion granted. Appellant shall recover of respondent $50 costs and disbursements of this appeal. Defendant-respondent issued its cheek dated May 24, 1971 for $25,000 on account of the purchase of commodities contracts. Prior thereto defendant had paid approximately $82,000 thereon. The defendant stopped payment on the $25,000 check. Plaintiff was acting as broker. Defendant has failed to factually justify its failure to pay said sum. Reliance on the conclusory allegations in the complaint and affidavit of the attorney in Action No. 1 are insufficient in that they fail to supply facts in support of the alleged fraud. Concur — Stevens, P. J., McGivern, Kupferman, Murphy and McNally, JJ.