Meridian Trading Corp., Appellant, v. Carlton Credit Corporation, Respondent, 21 A.D.2d 780

Order, entered on July 9, 1963, denying plaintiff’s motion for

summary judgment, unanimously modified, on the law, the facts and in the exercise of discretion, and plaintiff’s motion granted to the extent of dismissing the defendant’s “third defense and first counterclaim”, and, as so modified, the order is affirmed, without costs. Triable issues of fact exist which require a denial of plaintiff’s motion for

summary judgment except as to the “third defense and first counterclaim.” The defendant there alleges that the plaintiff received in excess of $17,000 in the course of a

chapter XI proceeding involving the Denton Steamship Corp., and that by reason of a certificate of indebtedness executed in its favor, defendant is entitled to such funds. In the affidavits submitted by plaintiff in support of its motion, it is averred unequivocally that such funds were never received. In its reply affidavit, defendant’s president states that he was informed by plaintiff’s general manager and another that plaintiff had received the moneys in question.

In the face of the clear and unequivocal denials by the plaintiff’s fiscal officer that such funds were ever received, the mere averment of defendant’s president that he had been informed to the contrary, completely unsupported by any evidentiary specification, is insufficient to withstand the attack of

summary judgment. Concur — Rabin, J. P., McNally, Stevens, Eager and Staley, JJ.