Murphy v. Bissell ( 1938 )

— In an action for an accounting under an alleged partnership agreement, order, in so far as it denies appellants’ renewed motion for summary judgment under Civil Practice Rule 113, reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Appeal from original order dismissed. Plaintiff, in his reply, denies he executed and delivered the general release. In his affidavits in opposition to the motion, plaintiff admits he did so but states he did not read the instrument. Nowhere in his affidavits does plaintiff state that he was induced to execute the release or refrain from reading it by misrepresentation or fraud, nor is there any claim of mutual mistake. In our opinion the affidavits do not set forth a triable issue. Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ., concur.