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BORO HALL CORPORATION v. GENERAL MOTORS CORPORATION

No. 94.

124 F.2d 822 (1942)

BORO HALL CORPORATION v. GENERAL MOTORS CORPORATION et al.

Circuit Court of Appeals, Second Circuit.

January 8, 1942.

Attorney(s) appearing for the Case

Harry J. McDermott, of Brooklyn, N.Y. (Harry J. McDermott and Frederick S. Martyn, both of Brooklyn, N. Y., of counsel), for plaintiff-appellant.

John Thomas Smith and Albert M. Levert, both of New York City (Albert M. Levert and Gordon H. Brown, both of New York City, of counsel), for defendants-appellees.

Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The motion to dismiss the complaint was accompanied by an affidavit which in turn was answered by the plaintiff without raising any material issues of fact. We see no reason why the application should not be treated as one for summary judgment under Section 56 of the Rules of Civil Procedure, 28 U.S.C. A. following section 723c. But even if the motion were regarded as made under Section 12(b) of the rules, we have held that affidavits...

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