Majority
p. 60Anne Butler, Appellant, v. Mercantile Arcade Realty Corporation, Respondent. First Department, December 24, 1934.
Lionel S. Popkin of counsel [Riegelman, Hess & Hirsch, attorneys], for the appellant.
Franklin Waldheim of counsel [Newgass, Nayfack & Waldheim, attorneys], for the respondent.
Even if we assume that plaintiff is bound by the contract of January 12, 1933, between Halsey, Stuart & Co., S. W. Straus & Co., Stroud & Co., and A.
p. 61
parties to that contract did not agree to abstain from instituting any action on the coupons, but expressly reserved the right to take such action as might be deemed advisable. Since no issue of fact was presented by the affidavits, the plaintiff’s motion for summary judgment should have been granted.
The order denying the plaintiff’s motion for summary judgment should be reversed, with twenty dollars costs and disbursements, and the motion granted. The order granting the defendant’s motion for leave to serve an amended answer should be reversed and the motion denied.
Present — Finch, P. J., Merbell, Townley, Glennon and Untermyer, JJ.
Order denying plaintiff’s motion for summary judgment reversed, with twenty dollars costs and disbursements, and the motion granted. Order granting defendant’s motion for leave to serve an amended answer reversed and motion denied.