
    Barnet Witt, Appellant, v. Arnmarl Realty Co., Inc., Respondent, et al., Defendants.
   Appeal (1) from an order of the Supreme Court at Special Term, entered October 5, 1946, in Hew York County, which granted a motion by defendant-respondent for a dismissal of the complaint under rule 113 of the Rules of Civil Practice, and (2) from the judgment entered thereon.

Per Curiam.

Whether plaintiff’s assignor had received partial payments on account of interest due under the terms of the mortgage under foreclosure during the six-year period prior to the commencement of this action cannot be conclusively determined upon the papers submitted. There may be other fact issues. In the circumstances, summary judgment dismissing the complaint should not have been granted. The controverted questions involved must be determined upon a trial.

The judgment and order should be reversed, with costs, and the motion denied.

Martin, P. J., Glennon, Cohn, Callahan and Peck, JJ., concur.

Judgment and order unanimously reversed, with costs to the appellant, and the motion denied.  