Opinion
279 A.D. 49 107 N.Y.S.2d 861 ISADORE SCHOENFELD, Respondent, v. MODERN SILVER LINEN SUPPLY CO., INC., et al., Appellants. Supreme Court of New York, First Department. November 13, 1951
APPEAL from an order of the Supreme Court at Special Term (EDER, J.), entered May 4, 1951, in Bronx County, which denied a motion by defendants for an order dismissing the complaint and granting summary judgment in an action to recover a sum of money alleged to be due plaintiff under a contract of employment.
COUNSEL
Myron P. Gordon of counsel (Arthur A. Litt with him on the brief; Jacob Landau, attorney), for appellants.
Louis Spivack of counsel (S. O. Menikoff with him on the brief; Menikoffs&sSpivack, attorneys), for respondent.
Per Curiam.
When a document which prime facie defeats the plaintiff's cause of action is produced on a motion for summary judgment to dismiss the complaint, it is incumbent upon plaintiff to show by affidavit or other proof such facts sufficient to entitle him to a trial of the action (Rules Civ. Prac., rule 113).
In support of their motion, defendants submitted a general release executed by plaintiff at the time of his discharge which runs to defendants, their affiliated corporations and principal stockholders. Plaintiff has failed to impugn the validity of this release, or to raise a question of fact as to its validity or purpose. The bare statement that the release was a 'mere formality' is clearly insufficient.
Moreover, plaintiff's complaint is that defendants breached an alleged oral agreement of employment made on February 7, 1947. The documentary proof presented by defendant to assail that claim consists of a written contract by the parties made on July 24, 1947. This instrument is wholly inconsistent with the oral agreement. In the circumstances, the prior oral contract must be deemed to have been superseded by the writing (Johnson v. Cheney Bros., 277 A.D. 656, [VAN VOORHIS, J.]).
The order should be reversed, with $20 costs and disbursements to appellants, and the motion for summary judgment should be granted, and judgment directed to be entered dismissing the complaint herein, with costs to defendants. DORE, J. P., COHN, CALLAHAN, VAN VOORHIS and SHIENTAG, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellants and the motion granted, and judgment is directed to be entered dismissing the complaint herein, with costs.