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Barrett v. Jacobs

Court of Appeals of the State of New York
Feb 19, 1931
255 N.Y. 520 (N.Y. 1931)


Argued February 11, 1931

Decided February 19, 1931

Appeal from the Supreme Court, Appellate Division, Second Department.

I. Maurice Wormser, Israel G. Ornstein and Charles Fredericks for appellant. Joseph A. Fagnant for respondents.

On an application for summary judgment under rule 113, Rules of Civil Practice, the only question is whether an unsubstantial formal defense has been interposed for purposes of delay. Judgment should not be granted unless it is clear that plaintiff has made out a case on the undisputed material facts presented on the record by affidavit or other proof. ( Curry v. Mackenzie, 239 N.Y. 267, 269.)

In this case it is not clear that the action was not prematurely brought; it is not clear that the respondents have earned their commissions under their contract of employment. It is significant, although not conclusive, that the trial justice and two justices of the Appellate Division were of the opinion that there were questions of fact to be tried. Respondents have an arguable defense on the record before us and should not be deprived of a trial.

The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division.


Judgment accordingly.

Summaries of

Barrett v. Jacobs

Court of Appeals of the State of New York
Feb 19, 1931
255 N.Y. 520 (N.Y. 1931)
Case details for

Barrett v. Jacobs

Case Details

Full title:ERNEST D. BARRETT et al., Respondents, v. SAMUEL K. JACOBS, Appellant

Court:Court of Appeals of the State of New York

Date published: Feb 19, 1931


255 N.Y. 520 (N.Y. 1931)
175 N.E. 275

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