Memorandum: A motion by plaintiff for summary judgment may not be granted unless the action comes within one of the first eight subdivisions of rule 113 of the Rules of Civil Practice, and only in such equitable actions as fall within subdivisions six, seven, and eight thereof (Lederer v. Wise Shoe Co., 276 N. Y. 459, 463; Donnelly v. National City Bank of New York, 276 App. Div. 1096; Tripp, Guide
Page 706
to Motion Practice [Rev. ed.], § 96; Shientag on Summary Judgment.) In this action for a declaratory judgment the nature of the relief sought is not included within any of the said subdivisions. All concur. (Appeal from an order denying plaintiff’s motion for summary judgment in an action to remove a cloud upon title to realty.) Present — Taylor, P. J., MeCurn, Kimball, Piper and Wheeler, JJ.