Interstate Pulp & Paper Co. v. New York Tribune

Majority

p. 453

Interstate Pulp & Paper Co., Inc., Appellant, v. New York Tribune, Respondent. (Action No. 2.)

First Department,

December 21, 1923.

Headnote

Appeal — Appellate Division will review order denying motion for summary judgment under Rules of Civil Practice, rule 113 — summary judgment not granted under Rules of Civil Practice, rule 113, where action not for debt or liquidated demand — motion for judgment on pleadings under Rules of Civil Practice, rule 112, properly denied.

So much of the decision in Dwan v. Massarene ( 199 App. Div. 872 ) as holds that the Appellate Division will not review an order denying a motion for summary judgment under rule 113 of the Rules of Civil Practice has been overruled.

p. 454

The court properly denied plaintiff’s motion for summary judgment under rule 113 of the Rules of Civil Practice, since the action is not one for a debt or liquidated demand, and, since the pleadings raise issues of fact, the motion for judgment on the pleadings under rule 112 of the Rules of Civil Practice was properly denied.

Appeal by the plaintiff, Interstate Pulp & Paper Co., Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of November, 1922, denying its motion for judgment on the pleadings and for summary judgment.

Ingraham, Sheehan & Moran [Alfred B. Page of counsel], for the appellant.

Sackett, Chapman, Brown & Cross [William P. Chapman, Jr., of counsel], for the respondent.

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.