Joseph S. Wald, Plaintiff, v. Samuel Gold, Defendant and Third-Party Plaintiff. Emil Luboff et al., Third-Party Defendants.
Supreme Court, Special Term, New York County,
November 17, 1955.
George Popkin for defendant and third-party plaintiff.
Bernard Axler for plaintiff.
Robert J. Eliasberg for third-party defendants.
Eder, J.
Defendant moves to dismiss the complaint “ upon the ground that the complaint does not state a cause of action ”. No reference to any rule is made. Defendant has so moved upon all the pleadings, an affidavit and exhibits annexed thereto. It is quite evident that what was intended was a motion for summary judgment dismissing the complaint. Plaintiff raises no objection on this ground and his brief goes to the merits of the controversy by stating: “ The sole question on this motion is whether the landlord has a right to transfer security under a lease to a purchaser of the leased property when a deposit was made by a person other than the tenant.” Since the real issue has thus been met by the parties, the mislabeling of the motion in the notice thereof may be disregarded and the motion treated as one for summary judgment.