Opinion
January 13, 1939.
Action upon an undertaking executed by the corporate defendant, given upon the issuance of a warrant of attachment against real and personal property, which warrant was subsequently vacated and the attachment action discontinued at the instance of the attachment plaintiff. Order denying plaintiff's motion for summary judgment and for an order of reference to assess plaintiff's damages, which order also dismissed the plaintiff's complaint for its alleged failure to state facts sufficient to constitute a cause of action, reversed on the law, with ten dollars costs and disbursements, plaintiff's motion for summary judgment granted, with ten dollars costs, and cause remitted to the Supreme Court for the assessment of the plaintiff's damages before a court and jury, as provided in Civil Practice Rule 113. The complaint stated facts sufficient to constitute a cause of action. (2 Wait's New York Practice [3d ed.], p. 209, and cases there cited.) The papers upon the motion for summary judgment presented no triable issue. The plaintiff, as matter of law, is entitled to such judgment. (Ibid.) The plaintiff's damages should be assessed by a jury. ( Livingston v. Blumenthal, 248 App. Div. 138.) Lazansky, P.J., Hagarty, Davis, Adel and Taylor, JJ., concur.