248 A.D. 848 | N.Y. App. Div. | 1936
Judgment and order reversed on the law, with costs, and motion denied, without costs. Memorandum: The moving affidavits contain no allegation to the effect that the plaintiff believes there is no defense to the action. While this may be thought to be a somewhat technical objection to the granting of the motion, such an allegation is a requisite prescribed by rule 113 of the Rules of Civil Practice. Its necessity is upheld in First Trust & Deposit Co. v. Holt & Thomas, Inc. (236 App. Div. 714). The remedy of summary judgment is a drastic one, and the requirements of the rule should be strictly complied with in order to entitle the movant to relief. Such being our view we find that it is unnecessary to pass upon the sufficiency of the affidavits in other respects. All concur. (The judgment is entered upon the order striking out the answer of defendant Fish in a replevin action.) Present — Sears, P. J., Taylor, Edgcomb, Crosby and Lewis, JJ. [See ante, p. 529.]