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Estate of Silverman v. Manufacturers Hanover Trust Co.

43 Misc. 2d 675 Court Supreme Court, Appellate Term, Kings County, Decision date 1964-06-03 English

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p. 675
Estate of Irving Silverman, Deceased, et al., Appellants, v. Manufacturers Hanover Trust Company, Respondent-Appellant, and Evelyn Moses, Respondent.
Supreme Court, Appellate Term, Kings County,
June 3, 1964.
Waldman & Lobenthal (Irving Waldman of counsel), for appellants. Perry S. Propp for respondent. Simpson Thacher & Bartlett (Walter J. Josiah of counsel), for respondent-appellant.

The remedy of summary judgment in lieu of a complaint, as provided for in CPLB. 3213, is available only in an action “ based upon a judgment or instrument for the payment of money only”. The instant action, to recover moneys alleged to have been paid out improperly by defendant bank upon a check issued by plaintiffs’ decedent, does not come within either of these categories.

The orders should be unanimously modified by providing that the denial of the motions for summary judgment is without prejudice to renewal after joinder of issue upon formal pleadings, and as so modified, affirmed, without costs. Plaintiffs’ time to serve a complaint is extended until 10 days after service of a copy of the order hereon.

Concur — Di Giovaeea, Margett and Schwartzwald, JJ.

Orders modified, etc.