117 Misc. 154 | N.Y. Sup. Ct. | 1921
Plaintiff moves for a summary judgment under rule 113, Civil Practice Bules. The complaint alleges a cause of action upon an account stated. The answer is a general denial. Buie 113 provides that when an answer is served in an action to recover a debt or liquidated demand arising on a contract “ the answer may be struck out and judgment entered thereon on motion, and the affidavit of the plaintiff or of any other person having knowledge of the facts, verifying the cause of action and stating the amount claimed, and his belief that there is no defense to the action, unless the defendant by affidavit or other proof shall show such facts as may be deemed by the judge hearing the motion sufficient to entitle him to defend.” The affidavit upon which the motion is based adds nothing to the complaint, for it simply declares that the defendant “is justly and truly indebted” to plaintiff in the sum stated in the complaint “ and was so indebted at the commencement of this action.” And then is added the following: “ The particulars of the said sum appear upon the complaint in this
Motion denied, with ten dollars costs.