Ball Motors, Inc. v. Orange County Trust Co. , 190 N.Y.S.2d 533 ( 1959 )

In an action for an accounting (1st cause of action), and for the recovery of damages (2d cause of action), the appeal is from an order-denying appellant’s motion for summary iudgment in respect of the first cause of action (Rules Civ. Prac., rules 113, 114). Order affirmed, without costs, and without prejudice to renewal of the motion. The motion was properly denied on the grounds that rule 113 of the Rules of Civil Practice, in effect at the time when the motion was made, did not provide for summary judgment in an action for an accounting except in a case in which the right to an accounting arose under a written contract. We do not decide whether the order might properly be reversed pursuant to the amendment to rule 113 which took effect pending this appeal (see Kugel v. Telsey, 250 App. Div. 638; but cf. Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 270; People ex rel. Central New England Ry. Co. v. State Tax Comm., 261 App. Div. 416, 418). In our opinion, the complaint does not state facts sufficient to justify a judgment for an accounting against the respondent bank, and if it be assumed that the complaint is sufficient in this respect, the record discloses triable issues of fact with respect to appellant’s claim. The complaint does not allege ■facts which would establish any relationship between appellant and the bank but that of debtor and creditor, and the allegation in the affidavit in support . of the motion, that respondent Donnelly acted as agent for the bank is denied. .The motion may be renewed as against both respondents, if appellant’s complaint shall be amended so as to state a cause of action against both, or against • respondent Donnelly alone, if appellant shall be so advised. Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.