Opinion
March 31, 1966
Judgment against defendant-appellant and order dated March 10, 1965 as resettled by order entered on June 21, 1965, to the extent that said order dated March 10, 1965 as so resettled granted plaintiff-respondent's motion for an order granting summary judgment in its favor and striking defendant-appellant's answer, unanimously reversed, on the law, and the motion denied, with $50 costs to abide the event. We are not unimpressed with the strength of plaintiff's claims on reading and weighing the affidavits, and especially the claim with respect to the goods alleged to have been delivered. But the motion asks that the issues be disposed of summarily, and we are not persuaded that defendant-appellant's positions are so tenuous that the test of a trial may properly be by-passed (cf. Millerton Agway Coop. v. Briarcliff Farms, 17 N.Y.2d 57).
Concur — Botein, P.J., Breitel, Rabin, Stevens and Steuer, JJ.