In Lonsky v. Bank of United States (220 App. Div. 194) this court reversed a similar judgment and order of the Special Term upon the authority of Curry v. Mackenzie (supra).Summary of this case from Stuyvesant Credit Union v. Manfrs. Trust Co.
April 8, 1927.
Appeal from Supreme Court of New York County.
Bernard Hershkopf of counsel [ Isidor J. Kresel and H. Louis Jacobson with him on the brief], for the appellant.
Anton Gronich of counsel [ Samuel Herbsman with him on the brief; Anton Gronich, attorney], for the respondent.
The plaintiff alleges an agreement by the defendant, in consideration of a stated sum, to transmit 5,000 rubles in the plaintiff's name to the Government Savings Bank in Moscow and to deliver a bank book evidencing this deposit to a named person in Russia; that the defendant failed and neglected to transmit this money, and that the plaintiff rescinded and demanded back the consideration. For a second cause of action, the plaintiff alleges a similar transaction for the transmission of 10,000 rubles. The answer denies all the material allegations of the complaint. While the allegations in the complaint are not stated to be on information and belief, it is obvious that the plaintiff can have no personal knowledge of the failure to transmit the money or to deliver the bank book in Russia. The only support to the complaint adduced on this motion was the testimony given before trial by an officer of the bank, that the money had been sent to the bank's representative in Russia, but that he could not state on personal knowledge whether this agent had deposited the money in the savings bank or caused the bank book to be delivered to the designee. The justice at Special Term granted the motion on the ground that the defendant had presented nothing to support its denials.
Rule 113, however, is not intended to shift the burden of proof. The rule specifically requires a moving affidavit "of the plaintiff or of any other person having knowledge of the facts, verifying the cause of action." As is stated by CARDOZO, J., in Curry v. Mackenzie ( 239 N.Y. 267): "There must be supporting affidavits proving the cause of action, and that clearly and completely, by affiants who speak with knowledge." It is only when such prima facie proof is made that judgment may summarily be ordered upon the defendant's failure affirmatively to show the existence of a triable issue.
The judgment and order appealed from should be reversed, with costs, and the motion denied, with ten dollars costs.
DOWLING, P.J., MERRELL, MARTIN and O'MALLEY, JJ., concur.
Judgment and order reversed, with costs, and motion for summary judgment denied, with ten dollars costs.