
    Jack Liss, Respondent, v. Continental Casualty Company, Appellant.
    First Department,
    December 27, 1935.
    
      
      Andrew Eckel of counsel [McCormick & Eckel, attorneys], for the appellant.
    
      Emil H. Wasserberger, for the respondent.
   Per Curiam.

Under rule 113 of the Rules of Civil Practice the order striking out the answer of the defendant and for summary judgment was improperly granted. Rule 113 does not embrace such an action as the present action to compel specific performance of an alleged agreement of the defendant to reinstate the insurance policy terminated by the failure of the plaintiff to pay the premium therein provided. Furthermore, we are of the opinion that issues of fact were presented which can only be determined upon a trial thereof.

The judgment and order appealed from should be reversed, with costs, and plaintiff’s motion denied, with ten dollars costs to the defendant-appellant against the plaintiff-respondent.

Present — McAvoy, Merrell, O’Malley, Townley and Untermyer, JJ.

Judgment and order reversed, with costs, and the motion denied, with ten dollars costs.  