Opinion
April 22, 1965
Order entered on January 6, 1965, denying defendant's motion for summary judgment, unanimously modified, on the law, and the motion granted to the extent of directing summary judgment in favor of defendant and dismissing the complaint with respect to item 47 of Exhibit A annexed to the complaint and, as so modified, is otherwise affirmed, with $30 costs and disbursements to the respondent. The failure of the defendant to include in the record the magazines which are the subject matter of this action, precludes the granting of summary judgment in its favor. Without an examination of such magazines it cannot be determined whether or not they are obscene within the meaning of section 22-a of the Code of Criminal Procedure. However, it appears — and respondent so concedes — that one of the magazines whose publication and distribution is sought to be enjoined is identical with a magazine which has been held not to be obscene. ( Larkin v. G.I. Distrs., 41 Misc.2d 165, affd. 19 A.D.2d 609, affd. 14 N.Y.2d 869. ) In such circumstances summary judgment dismissing the complaint with respect to that item should be granted.
Concur — Breitel, J.P., Rabin, Valente, Eager and Steuer, JJ.