Opinion
July 7, 1953.
Submission of a controversy pursuant to sections 546-548 of the Civil Practice Act.
We find that the instant submission of controversy is inadequate for a decision in favor of either party. It would appear that conflicting inferences may be drawn from the stipulated facts, especially as to the "locked gate". There is nothing in the stipulation of facts to indicate the nature or how securely the gate was locked, nor how long it was locked, etc. Neither is there anything in the stipulation of facts to indicate whether or not the plaintiff made inquiry of the defendant as to why the gate was locked, nor what information was forthcoming, if such inquiry was made. These considerations suggest the inadvisability of granting judgment to either party on the instant submission of controversy ( Lafrinz v. Whitney, 233 N.Y. 107; Title Guar. Trust Co. v. Mortgage Comm., 271 N.Y. 302; Matter of Gorman's Restaurant v. O'Connell, 275 App. Div. 166, affd. 299 N.Y. 733). Proceeding dismissed without prejudice.
Dore, J.P., Callahan, Breitel and Bergan, JJ., concur.
Submission unanimously dismissed, without prejudice and without costs to either party.