207 A.D. 453 | N.Y. App. Div. | 1923
So much of the decision in Dwan v. Massarene (199 App. Div. 872) as holds that we will not review appeals from orders denying motions for summary judgment under rule 113 of the Rules of Civil Practice, we have expressly overruled in two cases (Lee v. Graubard, 205 App. Div. 344; Hongkong & Shanghai Banking Corp. v. Lazard-Godchaux Co., 207 id. 174).
This is not an action for a debt .or liquidated demand within the purview of rule 113, and for that reason the motion for summary judgment was properly denied. The motion for judgment on the pleadings under rule 112 of the Rules of Civil Practice was properly denied, as the pleadings raise issues of fact which should be tried in the usual manner, and not determined upon affidavits.
The order should, therefore, be affirmed, with ten dollars costs and disbursements.
Present — Clarke, P. J., Dowling, Smith, Merrell and McAvoy, JJ.
Order affirmed, with ten dollars costs and disbursements.