Swanson v. Swanson — 52 N.Y.2d 1004

Majority

p. 1004

Irene A. Swanson, Appellant, v Robert E. Swanson, Respondent.

Argued January 13, 1981;

decided February 19, 1981

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APPEARANCES OF COUNSEL

Gary N. Weintraub for appellant.

Darrin Berger for respondent.

OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the case remitted to Supreme Court, Suffolk County, for a hearing.

We agree with the Appellate Division that, on the record as it now stands, it was established that plaintiff was responsible for payment of the taxes at issue. However, since Supreme Court decided the. matter on a motion to dismiss, before plaintiff had an opportunity to put in her case, it was error to direct judgment for defendant. Plaintiff should be afforded an opportunity to present any proper proof that

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would contradict defendant’s case. Accordingly, the matter should be remitted for that purpose.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer Concur in memorandum.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.