Channel Excavators, Inc. v. Amato Trucking Corp.

48 Misc. 2d 429 | N.Y. Sup. Ct. | 1965

Joseph Life, J.

Motion for an order for summary judgment in lieu of complaint pursuant to CPLR 3213 is denied. The plaintiff proceeds on a paper which is a bill or statement form of the defendant containing the words “We owe Channel Excavators ” followed by an amount. This paper is unsigned. It is not an “ instrument for the payment of money only” as prescribed by 3213 (supra). To come within the section the instrument need not be a negotiable instrument (Louis Sherry Ice Cream Co. v. Kroggel, 42 Misc 2d 21); however, the section was designed “ to provide a speedy and effective means of securing a judgment on claims presumptively meritorious ” where a formal complaint would be superfluous and it would be desirable to avoid delay. (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3213.01.) Here, the determination of the action would depend upon proof of facts outside the instrument itself (M. Gilston, Inc. v. Ullman, 45 Misc 2d 6). (See, also, Signal Plan v. Chase Manhattan Bank, 23 A D 2d 636.)

Here, “ the moving and answering papers do not define the issues satisfactorily.” (4 Weinstein-Korn-Miller, F. Y. Civ. Prac., par. 3213.01.) The plaintiff shall serve its complaint within 20 days from the date of this order and the defendant shall interpose its answer 10 days after the date of the service of the said complaint.