Kellog v. Berkshire Building Corp.

Per Curiam: 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.