
    Ernest D. Barrett et al., Respondents, v. Samuel K. Jacobs, Appellant.
    (Argued February 11, 1931;
    decided February 19, 1931.)
    I. Maurice Wormser, Israel Q. Ornstein and Charles Fredericks for appellant.
    A motion for summary judgment may not be granted where defendant’s affidavits disclose a defense. (Curry v. Mackenzie, 239 N. Y. 267; 
      Gravenhorst v. Zimmerman, 236 N. Y. 22; Niles v. Seeler, 240 N. Y. 650; Tide Water Oil Sales Corp. v. Pierce, 213 App. Div. 796; Karpas v. Bandler, 218 App. Div. 418; Hanna v. Mitchell, 202 App. Div. 504; 235 N. Y. 534; Dwan v. Massarene, 199 App. Div. 872; General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133; Codd v. Delap, 92 Law Times Rep. [N. S.] 510; Jones v. Stone, 70 Law Times Rep. [N. S.] 174.) The answering affidavits submitted by defendant clearly establish a substantial defense on the merits. (Seymour v. St. Luke’s Hospital, 28 App. Div. 119; 159 N. Y. 524.) The affidavits submitted by plaintiffs indicate that they would be unsuccessful upon the trial of the action. (Windsor Investing Corp. v. McLaughlin Sons, 130 Misc. Rep. 730; 224 App. Div. 715; Seymour v. St. Luke’s Hospital, 28 App. Div. 119; Larson v. Burroughs, 131 App. Div. 877; Brooklyn Clothing Corp. v. Fidelity-Phoenix Fire Ins. Co., 205 App. Div. 743.)
    
      Joseph A. Fagnani for respondents.
    A summary judgment was properly granted. (General Co. v. Interborouqh Co., 235 N. Y. 133.)
   Per Curiam.

On an application for summary judgment under rule 113, Rules of Civil Practice, the only question is whether an unsubstantial formal defense has been interposed for purposes of delay. Judgment should not be granted unless it is clear that plaintiff has made out a case on the undisputed material facts presented on the record by affidavit or other proof. (Curry v. Mackenzie, 239 N. Y. 267, 269.)

In this case it is not clear that the action was not prematurely brought; it is not clear that the respondents have earned their commissions under their contract of employment. It is significant, although not conclusive, that the trial justice and two justices of the Appellate Division were of the opinion that there were questions of fact to be tried. Respondents have an arguable defense on the record before us and should not be deprived of a trial.

The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.  