Opinion
May 13, 1949.
Appeal from Supreme Court.
The action was brought to recover money claimed to have been loaned by plaintiff to defendant. The answer denies the material allegations of the complaint and alleges that if plaintiff delivered any money to defendant it was intended to be, and was, a gift. Defendant's affidavit also specifically denies that she is indebted to the plaintiff in any sum. The record in this case demonstrates that there are issues of fact which can only be resolved by a trial. Under such circumstances, summary judgment should not be granted. The order and judgment appealed from are reversed, on the law and facts, with $10 costs and disbursements, and the motion for summary judgment is denied, with $10 costs. Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ., concur.