Jakuboski v. Matson Navigation Co. , 37 N.Y.S.2d 667 ( 1942 )

The fifth affirmative defense is sufficient in law. (Jakuboski v. Matson Navigation Co., 264 App. Div. 735; Hunt v. Bank Line, 35 Fed. Rep. [2d] 136.) The affidavit submitted on behalf of plaintiff in opposition to the motion fails to show the existence of a triable issue of fact. Carswell, Johnston, Adel and Close, JJ., concur; Lazansky, P. J., dissents and votes to affirm.