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Harry L. Cohen, Doing Business as Genesee Supply Co. v. James L. Pannia, Copartners Doing Business as Modern Lanes
Order of Onondaga County Court and order of Syracuse Municipal Court reversed, with $10 costs and disbursements, and motion granted, without costs. Memorandum: The affidavits submitted on the motion for summary judgment under rule 113 of the Rules of Civil Practice establish the second cause of action alleged in plaintiff’s complaint for an account stated sufficiently to entitle the plaintiff to judgment.
(See Rodkinson v. Haecker, 248 N. Y. 480, 485.) The opposing affidavit made by defendants’ attorney is not based upon personal knowledge, but on hearsay and must therefore be disregarded. (See City Sav. Bank of Brooklyn v. Torro, 253 App. Div. 748; Favole v. Gallo, 263 App. Div. 729; Buffalo Gen. Hosp. v. Suppa, 257 App. Div. 1030.) All concur.
(Appeal from order of Onondaga County Court affirming an order of Syracuse Municipal Court which denied plaintiff’s motion for summary judgment.) Present—MeCurn, P. J., Williams, Bastow, Goldman and Halpern, JJ.