Opinion
April 12, 1960
Order granting summary judgment to defendants and the judgment entered thereon, unanimously affirmed, with costs to respondents. In granting summary judgment, Special Term excluded from consideration the averments in the affidavits which, in the absence of a waiver, would have been inadmissible on a trial because of the provisions of section 347 of the Civil Practice Act. This court has, however, examined and weighed all of the affidavits including statements of facts and circumstances of transactions with the decedent, and from the entire record has concluded that there is no triable issue and the plaintiff's claim lacks merit. This court's view is that on a motion for summary judgment matter which might be excluded on a trial pursuant to section 347 of the Civil Practice Act may nevertheless be considered in determining whether a triable issue exists to defeat the motion (see, contra, Ditkoff v. Prudential Sav. Bank, 245 App. Div. 748 [2d Dept., 1935]).
Concur — Breitel, J.P., Rabin, M.M. Frank, Valente and McNally, JJ.