Summary
In Raybin, the affidavits in opposition to the motion disclosed that the defendant could introduce competent evidence which, if believed, might justify judgment for him.
Summary of this case from Friese v. BairdOpinion
January 29, 1962
In an action by the executrix of decedent's estate to recover $6,000 which decedent is alleged to have loaned his son, the defendant herein, said defendant appeals from an order of the County Court, Westchester County, made and entered September 5, 1961, which granted plaintiff's motion for partial summary judgment in the amount of $5,000 and severed and continued the action as to the balance of the claim. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, the record discloses triable issues of fact which should await a trial. Evidence which might be excluded on a trial pursuant to section 347 of the Civil Practice Act, while not to be used as the basis for granting summary judgment in favor of the party who offers such evidence ( Ditkoff v. Prudential Sav. Bank, 245 App. Div. 748), may nevertheless be considered in ascertaining whether a triable issue exists and may be utilized as the basis for denying summary judgment to such party ( Bourgeois v. Celentano, 10 A.D.2d 824 [1st Dept. 1960]). Moreover, the affidavit of defendant's father-in-law should have been considered although the answer does not contain an affirmative defense of a forgiveness of the indebtedness ( Curry v. Mackenzie, 239 N.Y. 267, 272). Beldock, P.J., Christ, Hill, Rabin and Hopkins, JJ., concur.