Barnet v. Horwitz — 278 A.D. 700

Majority

p. 700

(March 12, 1951.)

Stuart Barnet, Doing Business under the Name of National Realty Company, Appellant, v. Sidney J. Horwitz et al., Respondents.

In an action to recover brokerage commissions, order of the County Court, Westchester County, denying plaintiff’s motion for summary judgment, reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs. The counterclaim on its face does not set forth a cause of action and in any event no factual showing is made which would indicate that a triable issue exists. There is no dispute that plaintiff has earned his commission as a broker in the amount set forth in the complaint. The affidavit in opposition is made by an attorney who does not reveal personal knowledge of the facts. It is without probative value. (City Sav. Bank of Brooklyn V. Torro, 253 App. Div. 748 , 749; Favole v. Gallo, 263 App. Div. 729 .) Carswell, Acting P. J., Johnston, Sneed, Wenzel and MacCrate, JJ., concur.