Poland Export Corp. v. Marcus

Page, J.:

The plaintiff moved for a summary judgment. (Rules of Civil Practice, rule 113.) The learned justice at Special Term denied the motion on the ground that “ there is a real issue between the parties, and that issue has been formulated by the answer.” If the sole question in this case was whether the justice at Special Term had correctly determined that there was a triable issue, we would dismiss the appeal. (Dwan v. Massarene, 199 App. Div. 872, 880.)

There is, however, a more serious objection to this motion, which was not urged before us and presumably not called to the attention of…