Opinion
March, 1935.
The action was commenced for specific performance of a land contract. The plaintiff moved for summary judgment under rule 113 of the Rules of Civil Practice, which motion was granted and from which this appeal was taken. The defendant claims that his answer and affidavits raise the question whether it was not the intent of the parties that the plaintiff's action for damages and the liquidated damages provided by the contract was not plaintiff's only remedy under the contract. Order and summary judgment reversed, on the law and facts, with costs, and plaintiff's application for a summary judgment denied. (See Dealy v. Klapp, 199 App. Div. 150; Whipple v. Brown Brothers Co., 225 N.Y. 237.) Hill, P.J., Crapser and Heffernan, JJ., concur; Rhodes and Bliss, JJ., dissent, on the authority of Dealy v. Klapp ( 203 App. Div. 216; see, also, same case, 236 N.Y. 631.)