Opinion
June 3, 1964
Appeal from the Civil Court of the City of New York, County of Kings, HERBERT BAYEVSKY, J.
Waldman Lobenthal ( Irving Waldman of counsel), for appellants.
Perry S. Propp for respondent.
Simpson Thacher Bartlett ( Walter J. Josiah of counsel), for respondent-appellant.
The remedy of summary judgment in lieu of a complaint, as provided for in CPLR 3213, is available only in an action "based upon a judgment or instrument for the payment of money only". The instant action, to recover moneys alleged to have been paid out improperly by defendant bank upon a check issued by plaintiffs' decedent, does not come within either of these categories.
The orders should be unanimously modified by providing that the denial of the motions for summary judgment is without prejudice to renewal after joinder of issue upon formal pleadings, and as so modified, affirmed, without costs. Plaintiffs' time to serve a complaint is extended until 10 days after service of a copy of the order hereon.
Concur — DI GIOVANNA, MARGETT and SCHWARTZWALD, JJ.
Orders modified, etc.