Opinion
December 24, 1934.
Appeal from Supreme Court of New York County.
Lionel S. Popkin of counsel [ Riegelman, Hess Hirsch, attorneys], for the appellant.
Franklin Waldheim of counsel [ Newgass, Nayfack Waldheim, attorneys], for the respondent.
Present — FINCH, P.J., MERRELL, TOWNLEY, GLENNON and UNTERMYER, JJ.
Even if we assume that plaintiff is bound by the contract of January 12, 1933, between Halsey, Stuart Co., S.W. Straus Co., Stroud Co., and A.C. Blumenthal, yet she would not be precluded from maintaining this action. The parties to that contract did not agree to abstain from instituting any action on the coupons, but expressly reserved the right to take such action as might be deemed advisable. Since no issue of fact was presented by the affidavits, the plaintiff's motion for summary judgment should have been granted.
The order denying the plaintiff's motion for summary judgment should be reversed, with twenty dollars costs and disbursements, and the motion granted. The order granting the defendant's motion for leave to serve an amended answer should be reversed and the motion denied.
Order denying plaintiff's motion for summary judgment reversed, with twenty dollars costs and disbursements, and the motion granted. Order granting defendant's motion for leave to serve an amended answer reversed and motion denied.