
    Samuel Cook, Respondent, v. Koppel Bauman and Another, Appellants.
    Supreme Court, Appellate Term, Second Department,
    January 15, 1926.
    Judgment — summary judgment — motion by plaintiff cannot be granted if affidavits of defendant show defense — answering affidavits considered, though not served.
    A motion by a plaintiff for summary judgment cannot be granted if the affidavits submitted, in opposition thereto state facts, which, if true, would constitute a defense, and it is immaterial whether or not the plaintiff denies those statements.
    A court may consider answering affidavits on a motion for summary judgment, where they have been filed, although copies thereof were not served upon the attorneys for the plaintiff.
    Appeal from a summary judgment of the Municipal Court, Brooklyn, Seventh District, in an action on a promissory note.
    
      Eugene Schwartz, for the appellants.
    
      Morris Okoshken, for the respondent.
   Per Curiam.

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

Motions for summary judgment cannot be determined by passing upon controverted questions of fact. If the affidavits submitted in opposition state facts which, if true, would constitute a defense, the motion cannot be granted. It is immaterial whether the plaintiff denies those statements or whether they remain undenied. In neither case can the motion be granted. It was error for the court below to refuse to consider the answering affidavits on the ground that copies had not been served upon the attorneys for the plaintiff as directed and that the plaintiff had not had an opportunity to reply to them. The affidavits in opposition had been filed and should have been considered. Those papers set forth facts which, if true, would constitute a defense.

Present, Cropsey, MacCrate and Lewis, JJ.  