Opinion
June 14, 1960
Judgment appealed from and the order granting summary judgment in action for declaratory judgment reversed on the law, and the motion denied, without costs to either party. The motion must be denied only because the action comes within the purview of subdivision 4 of rule 113 of the Rules of Civil Practice, and the defense is not made out by documentary evidence.
Concur — Breitel, J.P., Rabin, McNally and Noonan, JJ.; Stevens, J., dissents and votes to affirm on the ground that from the affidavits in opposition on the motion and plaintiff's pleading, coupled with the judgment decree, there is a sufficient showing by the defendant to satisfy the requirements for documentary evidence required by subdivision 4 of rule 113 of the Rules of Civil Practice.