Appellate Division of the Supreme Court of New York, 1923

Interstate Pulp & Paper Co. v. New York Tribune

Interstate Pulp & Paper Co. v. New York Tribune
Appellate Division of the Supreme Court of New York · Decided December 21, 1923
207 A.D. 453; 202 N.Y.S. 232; 1923 N.Y. App. Div. LEXIS 5977

Counsel

Ingraham, Sheehan & Moran [Alfred B. Page of counsel], for the appellant., Sackett, Chapman, Brown & Cross [William P. Chapman, Jr., of counsel], for the respondent.

Interstate Pulp & Paper Co. v. New York Tribune

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Opinion of the Court

Per Curiam:

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.

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