Hyperlawhypertext legal databasebeta Treacy v. Melrose Paper Stock Co. 269 N.Y. 155

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Treacy v. Melrose Paper Stock Co.

269 N.Y. 155 Court N.Y. Decision date 1935-11-19 English

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p. 155
Edgar J. Treacy, as Receiver of Acorn Mill Supply Co., Inc., Appellant and Respondent, v. Melrose Paper Stock Co., Inc., Respondent and Appellant.
(Argued October 16, 1935;
decided November 19, 1935.)
p. 156
Jacob Goldberg for plaintiff, appellant and respondent.
The alleged counterclaims in the answer could not interfere with the granting of partial or summary judgment. (Smith v. Cranleigh, Inc., 224 App. Div. 376 ; Dodwell & Co., Ltd., v. Silverman, 234 App. Div. 362 .) Error was committed in not awarding double the amount of the admitted indebtedness. (People v. Bryant Co., 114 Misc. Rep. 133 ; City of New York v. Union Ry. Co.,
p. 157
206 App. Div. 472 ; Matter of N. J. Fidelity & P. G. Ins. Co. v. Van Schaick, 236 App. Div. 223 ; 261 N. Y. 521 ; Loucks v. Standard Oil Co., 224 N. Y. 99 .)
Stanley Osserman and Jerome H. Brill for defendant, respondent and appellant.
There is a triable issue, which cannot be disposed of by a motion for summary judgment. (Æ tna Life Ins. Co. v. National Dry Dock & Repair Co., 230 App. Div. 486 ; Dairymen’s League Cooperative Assra., Inc., v. Egli, 228 App. Div. 164 ; Reliable Loan & Investment Co. v. Delgus Co., 223 App. Div. 94 ; Dietz v. Glynne, 221 App. Div. 329 ; Bank of United States v. Slifka, 148 Misc. Rep. 60 ; Curry v. Mackenzie, 239 N. Y. 267 ; General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133 ; Gravenhorst v. Zimmerman, 236 N. Y. 22 ; Piedmont Hotel Co. v. Nettleton, 263 N. Y. 25 .)

The facts shown by defendant were sufficient to warrant trial of the issues raised by the counterclaims pleaded in the answer. Judgment was sought by defendant for a sum in excess of its admitted indebtedness to the corporation of which plaintiff is receiver. Thus the effect of section 176 of the General Corporation Law (Cons. Laws, ch. 23) was a question not presented. On this record plaintiff was not entitled to any summary judgment.

The judgment of the Appellate Division and that of the Special Term should be reversed and the motion denied, with costs in all courts to the defendant-appellant.

Crane, Ch. J., Lehman, O’Brien, Hubbs and Lough-ran, JJ., concur; Crouch and Finch, JJ., not sitting.

Judgments reversed, etc.

Cases cited