Kellog v. Berkshire Building Corp.

Judgment and order unanimously reversed upon the law, with ten dollars costs, and motion for summary judgment denied, with ten dollars costs.

The allegation of the complaint, “ that by reason of the failure of the defendant to show title to the aforesaid premises free from material defect, the said loan was not consummated,” is, at best, a statement of an ultimate fact. This allegation is denied by the answer. The affidavit in support of the motion for summary judgment repeats this allegation. It is not a statement of evidentiary facts which proves the plaintiff’s cause of action, as required by rule 113 of the Rules of Civil Practice. (Sher v. Rodkin, 198 N. Y. Supp. 597; Hallgarten v. Wolkenstein, 204 App. Div. 487; Rogan v. Consolidated Copper mines Co., 117 Misc. 718; Twigg v. Twigg, Id. 154; Dwan v. Massarene, 199 App. Div. 872; Damson Coal Co. v. Interstate C. & D. Co., 193 N. Y. Supp. 883.) It was not necessary for the defendant to submit an opposing affidavit to such an allegation.

Present: Cropsey, Lazansky and MacCrate, JJ.