Opinion
January Term, 1930.
William Macy, for the appellant.
David Ginsberg, for the respondent.
Judgment and order unanimously reversed, upon the law, with costs to appellant, and motion for summary judgment denied. The affidavit in support of the motion was made by the attorney for the plaintiff. Assuming that he was familiar with the facts giving rise to plaintiff's claim, he made no statement in his affidavit that there was no defense to the action. (Rules Civ. Prac. rule 113.) Moreover, the defendant in his affidavit alleged that the parties had stated an account between them and that the item sued for by plaintiff was included therein. While defendant did not plead the account stated as a defense, summary judgment cannot be awarded against him, since his affidavit discloses that it does exist. ( Curry v. Mac Kenzie, 239 N.Y. 267.)
All concur; present, CROPSEY, MacCRATE and LEWIS, JJ.