Milburn Associates, Inc. v. M. Saraga, Inc.

281 A.D. 876 | N.Y. App. Div. | 1953

Order reversed, with $20 costs and disbursements to defendant-appellant, and the motion for summary judgment granted. The record discloses the existence of a joint venture and some amount due. The opposing affidavit submitted by the plaintiff fails to establish any triable issue with respect thereto. The defendant is entitled to judgment on his counterclaim for an accounting. Present — Cohn, J. P., Callahan, Van Yoorhis and Breitel, JJ.; Cohn, J., dissents and votes to affirm on the ground that there is no proof in this record that plaintiff is indebted to defendant in any sum. All controversies between the parties arising out of the counterclaim as well as those stemming from the third and fourth causes of action should await determination at the one trial, at which there may be had a full adducement of all the facts. Accordingly, summary judgment upon the counterclaim should not be granted.