Apfel v. Auditore

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, *725therefore, 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.