Opinion
June 26, 1946.
Present — Taylor, P.J., Dowling, McCurn, Larkin and Love, JJ.
Order affirmed, with $20 costs and disbursements. Memorandum: The sufficiency of the complaint, as an action sounding in fraud, was determined by a previous appeal herein ( ante, p. 794, affg. 184 Misc. 1013). As against such a complaint a motion by defendant for summary judgment under rule 113 of the Rules of Civil Practice based on documentary evidence consisting of the petition of the administratrix for leave to compromise the claim, the order of the Surrogate, and the release executed, does not lie. Plaintiff does not dispute the verity of the documents but on the contrary assumes the burden of establishing that, while she executed them, she was induced to do so by fraud of defendant. The affidavits submitted by defendant tending to negative fraud did not require plaintiff to controvert them. To an issue such as is presented by this complaint, rule 113 has no application. ( Lederer v. Wise Shoe Co., 276 N.Y. 459, 464; Levine v. Behn, 282 N.Y. 120, 125, 126; Dumont v. Raymond, 49 N.Y.S.2d 865, 867.) Nor is Favole v. Gallo ( 263 App. Div. 729, affd. 289 N.Y. 696) at variance with this holding. Ross v. Preston ( 292 N.Y. 433) has no application. All concur. (The order denies defendants' motion for summary judgment in each of the two actions.)