SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 2, 1969
FRANK H. BAYLES, JR., ET AL., APPELLANTS,
DENOS P. MARVIN, RESPONDENT
Order of the Supreme Court, Suffolk County, dated November 26, 1968, affirmed, without costs.
Brennan, Acting P. J., Hopkins, Benjamin and Munder, JJ., concur. Martuscello, J., concurs and dissents.
Martuscello, J., concurs insofar as the order denied plaintiffs' motion for summary judgment, but otherwise dissents and votes to strike out the second and third decretal paragraphs of the order, which inter alia granted summary judgment to defendant, with the following memorandum:
In this action to impress a trust upon certain real property and for other and alternative relief, the order under review denied plaintiffs' motion for summary judgment and granted summary judgment to defendant dismissing the complaint. Defendant did not submit any papers in opposition to the motion; however, in his answer he asserted an affirmative defense of accord and satisfaction. While I agree with the majority insofar as they are affirming the denial of summary judgment to plaintiffs, I believe that there are genuine issues of fact asserted in the papers in support of the motion which require a trial; and, accordingly, I vote to reverse as to the dismissal of the complaint and the granting of summary judgment to defendant.
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