220 A.D. 194 | N.Y. App. Div. | 1927
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 tp a named person in Russia; that the defendant failed and neglected to transmit this money, and that the plaintiff rescinded and demanded back the consideration.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
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.