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Allied Discount Co. v. Bonded Auto Sales, Inc.

17 Misc. 2d 877 Court Supreme Court, Appellate Term, Second Department, Decision date 1959-03-12 English

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p. 877
Allied Discount Co., Inc., Respondent, v. Bonded Auto Sales, Inc., Appellant.
Supreme Court, Appellate Term, Second Department,
March 12, 1959.
Harold R. Kaplan for appellant.
Borden, Bkidell, Fleck é Bteindler (Herbert N. Bkidell of counsel), for respondent.

The order granting summary judgment and judgment entered thereon should be unanimously reversed upon the law, with $30 costs to defendant, and motion for summary judgment denied, with $10 costs. In its opposing affidavit, defendant, through its president, showed the existence of a valid counterclaim in an amount exceeding plaintiff’s claim. That the counterclaim was not pleaded is of no moment. The affidavit, not the pleading, was controlling on the motion for summary judgment. (Cf. Hellmuth v. Brandin, 3 A D 2d 997 ; see Shientag, Summary Judgment, pp. 65-66.)

Concur — Pette, Hart and Di Gtovanna, JJ.

Order reversed, etc.

Cases cited