280 A.D. 798 | N.Y. App. Div. | 1952
Appeals in two actions by the defendant Mt. Zion Baptist Church of Port Chester, Inc., from an order granting a motion by the impleaded defendants to dismiss the cross complaints alleged in defendant’s amended answers, and from an order which denied defendant's motion for an examination before trial of the plaintiff as a party and of impleaded defendants as witnesses; and from an order which denied defendant’s motion for summary judgment and other relief. Orders of the County Court, Westchester County, unanimously affirmed, with $10 costs and disbursements to respondents. The complaints are sufficient. Whether the contract and the note were duly authorized or ratified by appellant are matters for determination at the trial. (Cf. Conro v. Port Henry Iron Co., 12 Barb. 27, 63; McGary v. People, 45 N. Y. 153; Melledge v. Boston Iron Co., 59 Mass. 158; People’s Bank v. St. Anthony’s R. C. Church, 109 N. Y. 512, 520; 9 Fletcher’s Cyclopedia Corporations [Perm, ed.], § 4518, pp. 377-380.) The cross complaints were properly dismissed. They stated no cause of action against the impleaded defendants. Therefore, denial of the examination before trial as to the matters alleged in the cross complaints was proper. The moving affidavit on the motion for summary judgment and other relief stated there was an admission in the original answer that the note had been duly executed by appellant. In view of that admission and the failure to state a cause of action against the impleaded defendants, the motion ■for summary judgment could not be, granted. The weight to be given to the admission in the original answer is for the trier of the facts to determine. Present — Nolan, P. J., Carswell, Johnston, Wenzel and MacCrate, JJ. [See post, p. 828.]