Dahme v. Cherry Grove Ferry Corp.

In an action to set aside, to cancel of record, and to declare void, certain deeds, and for other relief, the appeals are (1) from an order entered April 12, 1957 denying appellant’s motion for summary judgment on the third cause of action alleged in the first amended complaint, (2) from on order entered April 12, 1957 granting respondent's cross motion for leave to serve a further amended answer, and (3) from an order entered May 16,1957 granting appellant’s motion for reargument of her original motion for summary judgment and on such reargument denying the motion. Order granting respondent’s cross motion for leave to serve a further amended answer affirmed, without costs. No opinion. Order on reargument affirmed, with $10 costs and disbursements. The action is not one which seeks only a declaratory judgment (cf. Lynch v. Bailey, 279 App. Div. 650, affd. 304 N. Y. 669), and consequently is not within subdivision 9 of rule 113 of the Rules of Civil Practice, nor is it included within any of the other subdivisions of that rule enumerating the cases in which a plaintiff may obtain summary judgment (cf. Feyh v. Brandtjen & Kluge, 283 App. Div. 807). In any event, issues of fact are raised which should not be settled on affidavits. Appeal from order denying appellant’s motion for summary judgment dismissed, without costs. No such order is printed in the record, and dismissal would be required in any event, in view of the appeal from the order granting reargument (Edell v. Edell, 279 App. Div. 657). Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.