MOHONK REALTY CORP. v. WISE SHOE STORES, 286 N.Y. 476 (1941)

36 N.E.2d 669

MOHONK REALTY CORPORATION, Appellant, v. WISE SHOE STORES, INC., Respondent.

Court of Appeals of the State of New York.Argued June 9, 1941
Decided July 29, 1941

Appeal from the Supreme Court, Appellate Division, First Department, WALTER, J.

Meyer Grouf, David W. Kahn and Nathan Siegel for appellant.

Joseph M. Proskauer, I. Alfred Levy, Bernard Weiss an Eugene Eisenmann for respondent.

Per Curiam.

This is an action brought to recover rent under a lease. At Special Term the plaintiff was granted summary judgment. The Appellate Division reversed, taking the view that there were “triable issues presented respecting whether the defendant should be held bound through privity of contract, as distinguished from privity of estate” (260 App. Div. 64, 66) as well as other triable issues relating to an assignment made by the defendant, its surrender of possession to its assignee, and the latter’s acceptance of the assignment and entrance into possession. Two questions have been certified:

“1. Was there privity of contract as well as of estate between the parties?

Page 477

“2. On the record herein was plaintiff entitled to summary judgment?”

The decision of the Appellate Division was apparently founded in a discretion which was exercised because the factual situation did not justify an answer to either of the questions now certified to us. The certified questions, therefore, should not be answered.

The appeal should be dismissed, without costs.

LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.

Appeal dismissed, etc.