
    Charles Kellog, Respondent, v. Berkshire Building Corporation, Appellant.
    Supreme Court, Appellate Term, Second Department,
    January 22, 1925.
    Judgment — summary judgment — complaint alleged that defect in title precluded consummation of loan — allegation not such statement of evidentiary facts as required by Rules of Civil Practice, rule 113, where denied in answer.
    An allegation in a complaint reciting “ that by reason of the failure of the defendant to show title to the aforesaid premises free from material defect,” the loan thereon was not consummated, is not such a statement of evidentiary facts as will prove plaintiff’s cause of action as required by rule 113 of the Rules of Civil Practice, and where said allegation is denied by the answer plaintiff is not entitled to summary judgment.
    Appeal from an order and judgment of the Municipal Court, Borough of Brooklyn, Second District.
    
      A. Berton Reed, for the appellant.
    
      Fred Iscol, for the respondent.
   Per Curiam:

Judgment and order unanimously reversed upon the law, with ten dollars costs, and motion for summary judgment denied, with ten dollars costs.

The allegation of the complaint, that by reason of the failure of the defendant to show title to the aforesaid premises free from material defect, the said loan was not consummated,” is, at best, a statement of an ultimate fact. This allegation is denied by the answer. The affidavit in support of the motion for summary judgment repeats this allegation. It is not a statement of evidentiary facts which proves the plaintiff’s cause of action, as required by rule 113 of the Rules of Civil Practice. (Sher v. Rodkin, 198 N. Y. Supp. 597; Hallgarten v. Wolkenstein, 204 App. Div. 487; Rogan v. Consolidated Copper mines Co., 117 Misc. 718; Twigg v. Twigg, Id. 154; Dwan v. Massarene, 199 App. Div. 872; Damson Coal Co. v. Interstate C. & D. Co., 193 N. Y. Supp. 883.) It was not necessary for the defendant to submit an opposing affidavit to such an allegation.

Present: Cropsey, Lazansky and MacCrate, JJ.  