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Jacobs v. Korpus

128 Misc. 445 Court Supreme Court, Appellate Term, Second Department, English

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p. 445
Samuel Jacobs, Respondent, v. Philip Korpus, Appellant.
Supreme Court, Appellate Term, Second Department,
September, 1926.

Headnote

Judgments — summary judgment — under Rules of Civil Practice, rule 113, summary judgment may be granted in action on quantum meruit — affidavit of moving party must verify cause of action before defendant is required to submit affidavit in opposition.
An action for services based upon a quantum meruit is an action “ to recover a debt or liquidated demand,” and as such is subject to a motion for summary judgment, upon proper papers.
But plaintiff herein is not entitled to summary judgment, since his affidavit did not verify Ms cause of action as required by rule 113 of the Rules of Civil Practice; the affidavit of the moving party must verify his cause of action before he can require the defendant to submit any affidavit in opposition to the motion.
• Appeal by defendant from an order granting a motion for summary judgment, and from the judgment entered thereon.

Plaintiff’s affidavit did not verify his cause of action, as required" by Rules of Civil Practice, rule 113. This must be done before defendant is called upon to present any affidavit in opposition. (State Bank v. Mackstein, 123 Misc. 416 ; Tidewater Oil Sales Corporation v. Pierce, 213 App. Div. 796 .)

Upon proper papers a motion for summary judgment may be made under the rule, either in an action “ to recover a debt or liquidated demand,” and this seems to cover an action for services based on a quantum meruit. (Poland Export Corporation v. Marcus, 204 App. Div. 302 ; Title Guarantee & Trust Co. v. Smith, 215 id. 448 ; Norwich Pharmacal Co. v. Barrett, 205 id. 749; Runnacles v. Mesquita, L. R. 1 Q. B. D. 416.) The latter case does not appear to have been reversed, as appellant claims. The plaintiff had no basis for judgment under Rules of Civil Practice, rule 112.

Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellant to abide the event, and motion for judgment denied, with ten dollars costs.

Present — Cropsey, MacCrate and Lewis, JJ.

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