Opinion
June 18, 1945.
Action to compel specific performance of a written contract by which plaintiff agreed, inter alia, to transfer to defendant, an employee, his taxicab business, consisting of automobiles, equipment, and a license issued by the Long Island Railroad Company granting plaintiff an exclusive right to park his taxicabs at the Locust Valley Station. The agreement also provided that defendant was to operate the business and to return the same to plaintiff when plaintiff should be released from the armed forces. After plaintiff was released, defendant refused to return the business. Order denying plaintiff's motion for summary judgment under rule 113, or, in the alternative, for judgment on the pleadings under rule 112 of the Rules of Civil Practice, affirmed, without costs. Since the relief sought is not specific performance of a contract for the sale and purchase of specific property or to recover possession of a specific chattel, summary judgment may not be granted under rule 113. While the order also denied plaintiff's motion for judgment on the pleadings, it is not urged on this appeal that the court erred in denying that part of the motion. In view of defendant's answer, the issues should be decided on the trial. Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ., concur.