Wilson v. Wilson , 3 A.D.2d 891 ( 1957 )

Amended order modified in accordance with the memorandum and as modified is, together with the order affirmed, with $10 costs and disbursements to the defendant. Memorandum: In view of the relief demanded in the complaint it is doubtful if plaintiff had the right to move for summary judgment. Moreover, the answer and answering affidavits raise factual issues that must await trial. Special Term correctly denied plaintiff’s motion. Its attempt to decide one of the legal questions presented is not authorized under rule 113 of the Rules of Civil Practice because the presence of other factual issues prevented the implementation of its decision by directing an assessment of damages. The amended order appealed from is modified by striking from the ordering paragraph all of the contents thereof except the words “ that plaintiff’s motion for summary judgment be and the same is hereby denied.” All concur. (Appeal from an order and amended order of Ontario Special Term denying plaintiff’s motion for summary judgment.) Present—McCurn, P. J., Vaughan, Williams, Bastow and Goldman, JJ.