Hawthorne v. Hawthorne , 23 A.D.2d 964 ( 1965 )

Order unanimously reversed, without costs of this appeal to either party, and matter remitted to Herkimer Special Term for further proceedings in accordance with the memorandum. Memorandum: The affidavit submitted by the plaintiff-respondent was insufficient not only as to the extent of the allegations contained, but also as to factual allegations as distinguished from conclusions. It appeared upon the argument that the defendant-appellant, if given an opportunity, would be able to submit affidavits containing factual matters relating to the intention of the parties as to the effect and extent of the release, which could have a definite bearing upon the determination of the motion. The matter, therefore, is remitted to Special Term, Herkimer County, for reargument, with the privilege to each of the parties to submit additional affidavits, if so advised. (Appeal from an order of Herkimer Special Term, granting plaintiff’s motion to strike paragraph 3 of defendant’s answer.)— Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.