259 A.D. 206 | N.Y. App. Div. | 1940
The plaintiff sues to recover installments due and unpaid on a contract, under seal, dated April 14, 1921, for the sale of real property. The answer, in substance, asserts that the plaintiff is not the real party in interest and that the cause of action is barred by the six-year Statute of Limitations. The plaintiff purchased the property described in the contract on October 10, 1930, and her deed provided that the conveyance was subject to the contract. The contract was delivered to the plaintiff together with the deed. The plaintiff promptly notified the defendants that she had acquired the deed and the contract, and demanded that the installments falling due under the contract should be paid to her. The defendants thereafter paid certain installments to the plaintiff and then defaulted. On August 16, 1938, plaintiff’s grantor executed a written assignment of the contract to the plain
The Special Term properly held that the answer and the opposing affidavits raised no triable issues. Rule 113 of the Rules of Civil Practice and the Civil Practice Act prescribe no limitation as to the time when a motion for summary judgment must be made. The object of rule 113 is to empower the court to summarily determine whether or not a bona fide issue exists between the parties, and there is no limitation on the power of the court to make such a determination at any stage of the litigation. (General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133, 142; Buffalo General Hospital v. Suppa, 257 App. Div. 1030.) The case of Corr v. Boggiano (244 App. Div. 724), relied upon by the defendants, is distinguishable on the facts.
The order and judgment should be affirmed, with costs.
All concur. Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCurn, JJ.
Order and judgment affirmed, with costs.