Cook v. Bauman

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

Motions for summary judgment cannot be determined by passing upon controverted questions of fact. If the affidavits submitted in opposition state facts which, if true, would constitute a defense, the motion cannot be granted. It is immaterial whether the plaintiff denies those statements or whether they remain undenied. In neither case can the motion be granted. It was error for the court below to refuse to consider the answering affidavits on the ground that copies had not been served upon the attorneys for the plaintiff as directed and that the plaintiff had not had an *24opportunity to reply to them. The affidavits in opposition had been filed and should have been considered. Those papers set forth facts which, if true, would constitute a defense.

Present, Cropsey, MacCrate and Lewis, JJ.