Gem Drywall Corp. v. C. Scialdo & Sons, Inc.

Memorandum by the Court. Appeal from an order of the Supreme -Court at Special Term, entered November 25, 1969 in Saratoga County, which granted partial summary judgment for the plaintiff, and from an amended judgment entered thereon February 26, 1970. Upon the original *1064 motion for summary judgment, Special Term, in denying the motion, found inter alia that defendants had shown a meritorious defense of accord and satisfaction. Subsequently, and as the basis of this appeal, Special Term found that since the defendants had not sought to plead the defense of accord and satisfaction, they did not intend to assert it as a defense. The defendants submitted an affidavit in opposition to the present motion in which it is specifically alleged that a particular representative of the plaintiff had orally admitted to the deponent that the defendants owed nothing to the plaintiff. While the record does not establish the authority of the alleged representative of the plaintiff, an affidavit submitted by that person does establish that he had sufficient authority to participate in negotiating the contract at issue upon this appeal and was the representative of the plaintiff in carrying out the performance of the contract. Upon the present record it does not appear that the defendants would be entitled to the claimed setoff of $7,900, but the alleged admission of no debt creates a question of fact as to whether or not the defendants are presently indebted to the plaintiff. In the ease of Furlo v. Cheek (20 A D 2d 939, 940) this court stated: “ summary judgment must he denied to a plaintiff if the motion papers disclose a meritorious defense, although unpleaded ”. Judgment and order reversed, on the law, and motion for summary judgment denied, with costs. Herlihy, P. J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by the court.