Barton v. Ostend Baths, Inc., 228 A.D. 644

Barton v. Ostend Baths, Inc.

228 A.D. 644 | N.Y. App. Div. | 1929

Order granting motion of petitioner and directing the receiver to pay petitioner’s bill for certain goods reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The court was without authority to determine this con*645troversy upon affidavits, especially since it affirmatively appears that the obligation, it any, was incurred by Ostend Baths, Inc., prior to the receivership, and since it affirmatively appears that whether the goods were in fact received by the receiver is a disputed question of fact which may not be determined upon affidavits, involving as it does the questions whether or not Sam Ackerman had authority to act for the receiver and whether or not he in fact received the goods for the receiver. Lazansky, P. J., Rich, Kapper, Carswell and Scudder, JJ., concur.