Opinion
March 21, 1941.
Appeal from Supreme Court of New York County, BENVENGA, J.
James A. Davis of counsel [ Leon Quat with him on the brief; Rabe, Keller Davis, attorneys], for the appellants. Jesse Hemley of counsel [ Frederick Hemley with him on the brief; House, Grossman, Vorhaus Hemley, attorneys], for the respondent.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, GLENNON and UNTERMYER, JJ.; MARTIN, P.J., dissents; O'MALLEY, J., taking no part.
The affidavits submitted in support of the motion for summary judgment dismissing the complaint against the appellants The Marine Midland Trust Company and James A. Davis, clearly demonstrate that the plaintiff has no cause of action against them. The complaint, therefore, should have been dismissed, the plaintiff having failed to submit in opposition any affidavits or other proof sufficient to warrant a trial. The mere allegations of the complaint do not constitute proof sufficient to defeat a motion for summary judgment. ( White v. Merchants Despatch Transp. Co., 256 App. Div. 1044.)
Since the cause of action alleged against the appellants is predicated upon a contract implied "in law" for the return of the consideration paid by the plaintiff, the motion for summary judgment is within the scope of subdivision 1 of rule 113 of the Rules of Civil Practice, as amended in 1932. If the decision in Bohlken v. Title Guarantee Trust Co. ( 248 App. Div. 722) holds to the contrary, it must be overruled.
The order denying the defendants-appellants' motion for summary judgment dismissing the complaint as to them should be reversed, with twenty dollars costs and disbursements, and the motion granted.
Order reversed, with twenty dollars costs and disbursements, and motion granted.