Carney v. Bares , 39 N.Y.S.2d 865 ( 1943 )

Untermyer, J. (dissenting).

The present case is distinguishable from Cocoa Trading Corp. v. Bayway Terminal Corp., 265 App. Div. 801, where the defendants’ affidavits alleged as a fact that “ the said Insurance Company became by subrogation and assignment from plaintiff the absolute owner of the claim herein sued upon and the assignee of all of plaintiff’s rights, if any, to recover thereunder.” That statement of fact was not effectively denied by the only affidavit submitted by the plaintiff, made by its attorney, which relied exclusively on the existence of the loan receipt. The affidavits thus presented an issue of fact whether at the time of the execution of the loan receipt the plaintiff, as alleged by the defendant, had also assigned its cause of action to the insurer.

In the present case the affidavits submitted by the defendants contain no corresponding allegation of fact, but rely exclusively on the loan receipt as establishing an assignment to the plaintiff’s insurer. The affidavits, therefore, present no issue of fact since under the authorities referred to by the Special Term the loan receipt, standing alone, does not constitute an assignment of the plaintiff’s claim.

The order should accordingly be affirmed.