Sea Modes, Inc. v. Cohen , 134 N.Y.S.2d 299 ( 1954 )

In a consolidated action, plaintiffs appeal from an order denying their motion for summary judgment with respect to the first, second and fifth causes of action contained in their complaint and the cause of action contained in defendant’s complaint and for other relief. Order reversed on the law, with $10 costs and disbursements, and motion for summary judgment granted, with $10 costs. The action is severed so as to permit plaintiffs to continue prosecution of the third and fourth causes of action contained in their complaint. The monthly statements of account between the parties became conclusive and binding accounts stated, upon defendant’s omission to submit objections or corrections to the statements within ten days after their rendition to him, in accordance with the provisions of the employment contract. The eonclusory statement in defendant’s affidavit in opposition to the motion that the check had been paid is not evidentiary matter which would entitle defendant to a trial with respect to the fifth cause of action. Adel, Acting P. J., Wenzel, Schmidt and Murphy, JJ., concur. MacCrate, J., concurs as to the fifth cause of action contained in plaintiffs’ complaint but, as to the first and second causes of action contained in plaintiffs’ complaint and the cause of action contained in defendant’s complaint, dissents and votes to affirm the order on the ground that as to these causes of action questions of fact are presented which warrant the denial of summary judgment.