Opinion
May 19, 1948.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ.
Order insofar as it denies plaintiff's motion for summary judgment affirmed, and order insofar as it dismisses plaintiff's complaint for insufficiency reversed on the law, without costs of this appeal to either party, and judgment entered thereon vacated, upon the ground that a motion made under rule 113 of the Rules of Civil Practice deals only with the question as to whether there are triable issues of fact in the case and is not addressed to the pleadings. ( Miorin v. Miorin, 257 App. Div. 556; see, also, Security Finance Co. v. Stuart, 130 Misc. 538, affd. 226 App. Div. 725.) Moreover, we think that the allegations of the complaint broadly construed state a cause of action. (See Rockland-Rockport Lime Co. v. Leary, 203 N.Y. 469, 484; Lawrence v. Miller, 86 N.Y. 131, 137; Stanley v. Gannon, 109 Misc. 611, affd. 192 App. Div. 915.) All concur. (The judgment dismisses plaintiff's complaint in an action to compel specific performance. The order denies plaintiff's motion for summary judgment and dismisses plaintiff's complaint.)