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Werfel v. Zivnostenska Banka

Court of Appeals of the State of New York
Nov 27, 1941
287 N.Y. 91 (N.Y. 1941)

Opinion

Argued May 23, 1941

Decided November 27, 1941

Appeal from the Supreme Court, Appellate Division, First Department, PECORA, J.

Jacob Chaitkin, Bernard J. Gardener and Sidney Brodman for appellant.

Lewis H. Saper for respondent.

Francis M. Shea, Assistant Attorney-General, for United States of America, amicus curiae.


The defendant is not entitled to summary judgment. Where on a motion for summary judgment the record as submitted by both parties reveals the existence of conflicting issues of fact which can only be resolved by a trial, summary judgment should not be granted. Upon such a motion the decisive consideration is the existence of conflicting issues of fact rather than the sufficiency of the pleadings considered without the supporting affidavits. ( Curry v. Mackenzie, 239 N.Y. 267, 272.)

Among the issues to be tried are the terms of the contract; what is the foreign law which either party claims to be applicable and in what respect may such law have been rendered inoperative by reason of events happening subsequent to the making of the contract.

The judgments should be reversed and the motions denied, with costs in all courts to appellant to abide the event.

LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.

Judgments reversed, etc.


Summaries of

Werfel v. Zivnostenska Banka

Court of Appeals of the State of New York
Nov 27, 1941
287 N.Y. 91 (N.Y. 1941)
Case details for

Werfel v. Zivnostenska Banka

Case Details

Full title:IDA WERFEL, Appellant, v. ZIVNOSTENSKA BANKA, Respondent

Court:Court of Appeals of the State of New York

Date published: Nov 27, 1941

Citations

287 N.Y. 91 (N.Y. 1941)
38 N.E.2d 382

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