Gordon v. New York Institute of Optics, Inc. (277 A.D.2d 1100, 1950)

Appeal from an order of the Supreme Court at Special Term, entered May 15, 1950, in New York County, which granted a motion by plaintiff for an examination before trial and for discovery and inspection, and denied a cross motion by defendants for summary judgment under rule 113 of the Rules of Civil Practice or for judgment on the pleadings under rule 112 of the Rules of Civil Practice and section 476 of the Civil Practice Act.

Per Curiam.

In our opinion defendants’ motion for summary judgment under rule 113 of the Rules of Civil Practice should have been granted as the uncontested documentary evidence annexed to the affidavits shows that plaintiff cannot establish a cause of action for rescission and the return to plaintiff of the shares of the capital stock in question.

The documentary evidence was not annexed to the complaint and accordingly defendants’ motion for judgment on the pleadings under rule 112 of the Rules of Civil Practice and section 476 of the Civil Practice Act could not be granted but, as we now grant defendants’ motion to dismiss under rule 113 of the Rules of Civil Practice, defendants’ appeal from that part of the order denying defendants’ motion for judgment on the pleadings should be dismissed as academic.

The order appealed from should be reversed, with $20 costs and disbursements to appellants, defendants’ cross motion for summary judgment under rule 113 of the Rules of Civil Practice should be granted, with costs to defendants and judgment entered accordingly, and plaintiff’s motion for an examination and a discovery and inspection should be denied.

Peck, P. J., Glennon, Dore, Yan Yoorhis and Shientag, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellants, defendants’ cross motion for summary judgment under rule 113 of the Rules of Civil Practice granted, with costs to the defendants, and judgment is directed to be entered accordingly, and plaintiff’s motion for an examination and p discovery and inspection denied. Settle order on notice.