103 Park Avenue Company, Appellant, v. Exchange Buffet Corporation and Others, Respondents

103 Park Avenue Company, Appellant, v. Exchange Buffet Corporation and Others, Respondents. First Department, December 22, 1922. Appeal — order denying motion for summary judgment under Rules of Civil Practice, rule 113, not appealable — rule 113 not applicable to action in equity to enjoin comptroller of oity of New York from paying award. An order denying plaintiff’s motion for summary judgment under rule 113 of the Rules of Civil Practice is not appealable in an action in equity to enjoin the comptroller of the city of New York from paying an award. Furthermore, rule 113 of the Rules of Civil Practice does not apply to this action. Appeal by the plaintiff, 103 Park Avenue Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of June, 1922, denying its motion for summary judgment. Deering & Deering [James J. Dunn of counsel; James R. Deering with him on the brief], for the appellant. Rippe & Michael [Maurice L. Rippe of counsel], for the respondent Exchange Buffet Corporation. John P. O’Brien, Corporation Counsel [Charles J. Nehrbas of counsel], for the respondents City of New York and another. [MAJORITY — Per Curiam:] Per Curiam: This is 'an action in equity to enjoin the comptroller of the city of New York from paying an award to the defendant Exchange Buffet Corporation, and that it be adjudged that the plaintiff is entitled to said award. This being an appeal from an order denying a motion for summary judgment under rule 113 of the Rules of Civil Practice, the appeal should be dismissed, with ten dollars costs and disbursements. Besides, rule 113 does not apply to this action. Present — Clarke, P. J., Dowling, Merrell, Greenbaum and Finch, JJ. Appeal dismissed, with ten dollars costs and disbursements.