Higgins v. Metropolitan Jockey Club

Order reversed upon the law, with ten dollars costs and disbursements, and motion for summary judgment granted, with ten dollars costs. We are of opinion that no triable issue of fact is raised by the pleadings or the affidavits. There is no claim that the contract upon which the plaintiff predicates his action is unconscionable, and we are of opinion that the facts alleged by the defendant upon which it bases a defense of fraud are insufficient to support such- a defense. In any event, that issue is out of the case, for the reason that the defendant is precluded by an order of the Supreme Court from introducing upon the trial any evidence in support of this defense. Defendant’s further contention that it is'-" 729 entitled to a trial of the issues for the purpose of ascertaining what portion of the reduction in the assessment was obtained as the result of the plaintiff’s effort, is unsound, it having conceded the reduction and that a part, at least, was due to the services rendered the defendant under the contract. (Rogers v. Polytechnic Institute of Brooklyn, 87 App. Div. 81.) Young, Rich, Hagarty, Seudder and Tompkins, JJ., concur.