Woodmere Academy v. Moskowitz, 212 A.D. 457

Woodmere Academy v. Moskowitz

212 A.D. 457 | N.Y. App. Div. | 1925

Jaycox, J.:

The plaintiff sued on a subscription for bonds of the plaintiff which it is alleged the defendant’s intestate made. The subscription agreement is annexed to the complaint and in it the agreement is made with the “Woodmere School” and it is for the bonds of that “ school ” that the defendant’s intestate subscribed. The complaint alleges that the subscription was intended for bonds of the plaintiff and was delivered to the plaintiff. It also alleges that in consideration of similar agreements, bonds to the amount of $200,000 were subscribed for by others; that it was agreed that the payments be made in equal payments of $1,000 each; that $1,000 has been paid and payment of the balance demanded.

The defendant, as administratrix, interposed an answer denying knowledge or information sufficient to form a belief as to the truth of these allegations. The denial is not in absolutely correct form, but absolute correctness in pleading is not necessary to defeat a motion of this kind. (Curry v. Mackenzie, 239 N. Y. 267.) The answer puts in issue the execution of the subscription agreement, the allegation that it was intended for this plaintiff and that other subscriptions were made on similar forms. An attempt is made by affidavits to show that the defendant did have actual knowledge of her intestate’s subscription, but the plaintiff only succeeds in showing that the defendant was present when plaintiff's representatives called; that she knew the purpose of their call; but the affiants fail to say that she was present when her husband subscribed and do say she was not present all the time *459during their call. The result is that the affidavits fail to show that the defendant has any knowledge of the truth of the allegations as to which knowledge is denied. The affidavits may be very convincing and lead to the conclusion that the plaintiff will probably succeed, but still if they do not meet the defendant’s denial and show that she in fact has knowledge of the controverted facts it cannot deprive her of the right to have the facts proved in court by common-law proof. The defendant has interposed a denial in the form prescribed by the Civil Practice Act (§ 261). She has also complied with rule 113 of the Rules of Civil Practice, as she has shown facts sufficient to entitle her to defend. In her affidavit filed in opposition to this motion, in speaking of these transactions, the defendant says she has absolutely no knowledge. This being so, it was her duty to defend and her answer should not be stricken out. (Rogan v. Consolidated Coppermines Co., 117 Misc. 718.) The Court of Appeals has said that the power of the court upon application for summary judgment should be exercised with care and not extended beyond its just limits. (General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133, 144.)

The position of the administratrix differs from that of the original debtor. If in the usual course of settling the estate a claim is presented and the administratrix doubts the justice of it, she can give the creditor notice to that effect and suit thereon must be brought within three months or the claim tried and determined upon the final accounting. (Surrogate’s Court Act, § 211.) Reasons are not required. The administratrix must unequivocally dispute the claim and this sets the short Statute of Limitations running and if an action is not brought within the statutory period, the claimant is required to establish his claim upon the accounting. (Van Ness v. Kenyon, 208 N. Y. 228; Surrogate’s Court Act, § 211.) Claims against estates must be established by very satisfactory evidence. (Matter of Van Slooten v. Wheeler, 140 N. Y. 624, 633.)

I can see no reason for applying a different rule to an action against ■ an administratrix. If the administratrix alleges that she has no knowledge, the claimant must establish his claim.

The order and judgment should be reversed upon the law, with costs, and the motion denied, with ten dollars costs.

Kelly, P. J., Rich, Kelby and Young, JJ., concur.

Order and judgment reversed upon the law, with costs, and motion denied, with ten dollars costs.