256 A.D. 1044 | N.Y. App. Div. | 1939
Order so far as appealed from reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Memorandum: In this appeal from so much of an order as denies defendants’ motion for summary judgment we learn from the opinion of the Special Term (not reported) that the denial was based on the theory that the motion did not lie under rule 113 of the Rules of Civil Practice for the reason that this action is not one of the eight kinds of actions listed in the rule. But it is now settled that, regardless of the form of action, the defendant may have summary judgment by making prima facie proof by documentary evidence of facts establishing a good defense. (Lederer v. Wise Shoe Co., 276 N. Y. 459.) Plaintiff has another action pending against defendant Merchants Despatch Transportation Company for damages. The present action is based upon the theory that defendant Merchants Despatch Transportation Company (1) is insolvent and (2) has made a transfer of its assets without adequate consideration. Defendants’ motion is based upon proof by affidavits that the defendants’ books of account show that (1) the defendant Merchants Despatch Transportation Company is abundantly solvent and (2) that it received full and adequate consideration for the transfer of its assets. Copies of defendants’ balance sheets are made a part of the affidavits. We determine that defendants’ corporate books are “ documentary evidence ” within the meaning of the rule. They are compelled by law to be kept. (Stock Corp. Law, § 10.) Not to keep them correctly constitutes a crime on the part of the corporation’s officers. (Penal Law, § 665.) No objection was made by plaintiff that the facts shown by the books were not proven by the books themselves rather than by statements drawn off from such books. No question was raised as to the manner of proving the contents of the books. We reach the conclusion that the defendants did establish, prima facie, by documentary evidence, facts calling upon plaintiff to offer something more than his conclusions, stated in the complaint, that the defendant Merchants Despatch Transportation Company is insolvent and has transferred its assets without adequate consideration. AH concur. (The portion of the order appealed from denies defendants’ motion for a summary judgment in an action to set .aside a transfer alleged to have been made in fraud of creditors.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.
