Appellate Division of the Supreme Court of the State of New York November 12, 1952 (Elgar v. S. H. Kress & Co.)

Breitel, J.

(dissenting). I dissent and vote to affirm the order, on the ground that under rule 113 of the Buies of Civil Practice a defendant’s motion for summary judgment will not lie in an action for nuisance unless the defense is based upon written documents.