In re Pack

Order denying motion to compel respondent, an attorney, to pay over certain funds affirmed, but without costs, the respondent having failed to appear or to file a brief. Neither party requested a hearing and each was satisfied to have the matter determined on affidavits. Lazansky, P. J., Young and Hagarty, JJ., concur; Carswell, J., with whom Tompkins, J., concurs, dissents, with the following memorandum: The affidavits do not disclose whether a hearing was or was not demanded. The appellant says that he should have had a hearing. The respondent does not assert that a hearing was not demanded or that the hearing is demanded for the first time.on appeal. Therefore, we should conclude a hearing was demanded. Questions of fact which rest in parol a,re here involved and may not be decided on affidavits. There should be a hearing and these questions decided on testimony subjected to cross-examination, where the trier of the fact can pass on credibility. Settled authority and uniformity of practice require such procedure. (Matter of Speranza, 186 N. Y. 280 ; Matter of Ernst, 54 App. Div. 363 ; Matter of Sundford v. Tiernan, 215 id. 833; Dege v. Mascot Realty Corporation, 243 id. 546.) Admonition to adhere to this rule has been too recent (New York Life Ins. Co. v. Guttag Corp., 265 N. Y. 292 ) to excuse a disregard of it, especially