Opinion
December 21, 1959
In an action to declare a deed void on the ground of nondelivery, and for an accounting of partnership assets, in which action a counterclaim for specific performance was interposed, the appeal is from an order and judgment (one paper) granting respondent summary judgment dismissing the third amended complaint, striking out appellant's reply to the counterclaim, and granting judgment in favor of respondent on his counterclaim. Order and judgment affirmed, with $10 costs and disbursements. No opinion. Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur; Nolan, P.J., dissents and votes to reverse the order and judgment and to deny the motion, with the following memorandum: Under the circumstances here, where the material facts are within the exclusive knowledge of the respondent and an attorney, one Hawthorne, appellant should have been afforded an opportunity to establish her case by the examination of the respondent and the said attorney both before and at the trial. (Cf. Newman v. Newark Fire Ins. Co., 281 App. Div. 852.)