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CIRCLE FLOOR CO. v. TOTONELLY SONS

282 A.D. 179 (1953)

Circle Floor Co., Inc., Respondent, v. E. Totonelly Sons, Inc., et al., Appellants

Appellate Division of the Supreme Court of the State of New York, First Department.

June 30, 1953.

Attorney(s) appearing for the Case

Joseph Feldman of counsel (Herbert M. Rosenberg with him on the brief; Rosenberg & Rosenberg, attorneys), for appellants.

Daniel J. Riesner of counsel (Julian Jawitz and Richard I. Donner with him on the brief; Daniel J. Riesner, attorney), for respondent.

DORE, J. P., and CALLAHAN, J., concur; COHN and BREITEL, JJ., dissent in part and vote to modify the order appealed from by granting summary judgment for $7,354.37 as to the second cause of action, and otherwise reverse, and deny summary judgment as to the first and third causes of action on the ground that there are triable issues of fact.

BERGAN, J.

Defendants presented a merely colorable defense to plaintiff's motion for summary judgment and the Special Term was of opinion, rightly we think, that a true issue for trial had not emerged from all the papers read on this motion. Judgment was granted accordingly.

Defendant Totonelly was a general contractor for defendant Carobene in the construction...

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