Diamond D. Bus Lines, Inc., Appellant, v. Hudson Transit Corporation, Respondent

Diamond D. Bus Lines, Inc., Appellant, v. Hudson Transit Corporation, Respondent. [MAJORITY] Appeal from an order of the Special Term of the Supreme Court, made on the 14th day of February, 1939, and entered in the Ulster county clerk’s office on the 15th day of February, 1939, which denied the plaintiff’s motion to strike out the answer and for summary judgment. The complaint alleges a cause of action for moneys claimed to be due under a contract for the operation by defendant of a bus line between the cities of Kingston and Newburgh under franchises held by the plaintiff. The answer sets up payment in full and accord and satisfaction as separate defenses, as well as denying plaintiff’s interpretation of the contract itself. The Special Term held the contract invalid in that the proper approval of the Public Service Commission had not been obtained under sections 53, 60 and subdivision 13 of section 61 of the Public Service Law. The affidavits submitted in opposition to the motion show that there are triable issues of fact as to the defenses of payment and accord and satisfaction. Also the interpretation and validity of the contract are at least doubtful and should not be summarily disposed of. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Crapser, Bliss, Heffeman and Foster, JJ.