Opinion
February 5, 1926.
Appeal from the Municipal Court, Borough of Manhattan, Second District.
Harris Koppelman, for the appellant.
The pleadings and affidavits disclose that an issue of fact was presented, namely, whether the plaintiff was an owner in due course or not. The defendant was, therefore, entitled to a trial of such issue and the court's disposition upon affidavits was unwarranted. On a motion of this character the function of the court is limited to ascertaining whether an issue is raised, and it has no right or authority to decide an issue of fact if existing. Judgment and order reversed, with ten dollars costs to appellant to abide the event.
All concur; present, BIJUR, DELEHANTY and WAGNER, JJ.