C. K. Pistell & Co. v. Aetna Securities Corp.

Per Curiam. Though the order granting the defendant’s motion for summary judgment, on which no judgment was entered, is not appealable without permission (N. Y. City Mun. Ct. Code, § 154), its merits may nevertheless be considered by us because of the provision of rule 113 of the Rules of Civil Practice, allowing the court, on a motion made under that rule, to grant judgment to the adverse party even in the absence of a cross motion therefor. We have therefore considered the propriety of the granting of the defendant’s motion for summary judgment. In our opinion there are triable issues, and were the order granting summary judgment in favor of defendant properly before us, we would be constrained to reverse it. However, because of its nonappealability without permission, the appeal from that order is dismissed. On plaintiff’s appeal, the order denying its motion for summary judgment should be affirmed, without costs.