Opinion
April 23, 1963
Order entered on December 24, 1962, denying a motion by defendant Cardinal Export Corp. to dismiss the complaint as against it, unanimously affirmed, with $20 costs and disbursements to the respondent. The motion was made under rule 106 of the Rules of Civil Practice and since affidavits as to the necessary facts, available only under subdivision 7 of rule 107 were not supplied, the court may not determine the issue tendered on the merits.
Concur — Breitel, J.P., McNally, Stevens, Eager and Steuer, JJ.