Wilson v. Wilson

Appellate Division of the Supreme Court of New York

Wilson v. Wilson

3 A.D.2d 891, 161 N.Y.S.2d 634, 1957 N.Y. App. Div. LEXIS 5810

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 17, 1957

StatusPublished

This text of 3 A.D.2d 891 (Wilson v. Wilson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilson v. Wilson, 3 A.D.2d 891, 161 N.Y.S.2d 634, 1957 N.Y. App. Div. LEXIS 5810 (N.Y. Ct. App. 1957).

Pincite

Opinion

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.

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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.

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Bluebook (online)

3 A.D.2d 891, 161 N.Y.S.2d 634, 1957 N.Y. App. Div. LEXIS 5810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-wilson-nyappdiv-1957.