Majority
p. 724Charles L. Apfel, Respondent, v. Frank Auditore and Another, Defendants, Impleaded with Sacramento Steamship Company, Inc., and Others, Appellant s.
Headnote
Pleadings — summary judgments — summary judgment will not be granted under Rules of Civil Practice, rule 113, in action on unliquidated demand.Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on May 13,1925, pursuant to an order made at the New York Special Term and entered in said clerk’s office on May 12, 1925, as resettled by an order of the Appellate Division, First Department,[1] entered in the office of the clerk of said court on November 20, 1925, granting plaintiff’s motion for summary judgment; also from the aforesaid order and the order as modified.[2]
Since the plaintiff’s cause of action is to recover upon an unliquidated claim, it does not come within the provision of rule 113 of the Rules of Civil Practice. The granting of the motion for summary judgment was,
p. 725
therefore, unauthorized. The judgment and orders appealed from should be reversed, with costs, and the motion for summary judgment denied, with ten dollars costs. Present — Clarke, P. J., Merrell, Finch, Martin and Wagner, JJ. Judgment and orders reversed, wi1h costs, and motion for summary judgment denied, with ten dollars costs.