Opinion
June 5, 1956
Order reversed and the motion for summary judgment granted in favor of appellant, with $20 costs and disbursements of the appeal to appellant. The underlying agreement between appellant and National Pictures Corporation did not contain merely a personal covenant against assignment, but clearly indicated, particularly by the language prohibiting the devolution of any rights, that such rights were not assignable. (See Allhusen v. Caristo Constr. Corp., 303 N.Y. 446.) Further, it has not been shown that the anti-assignment provisions have been waived, or that appellant is estopped from asserting these provisions. Since there are no triable issues of fact, the motion for summary judgment should have been granted.
Concur — Breitel, J.P., Rabin and Valente, JJ.; Cox and Frank, JJ., dissent and vote to affirm. Settle order on notice.