Opinion
December 1, 1960
Appeal from the Erie Special Term.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Order unanimously reversed, without costs of this appeal to either party and motion for summary judgment denied, without costs. Memorandum: Triable issues of fact are presented as to whether plaintiff sufficiently performed a written contract for the sale of real property to be entitled to payment of the balance of the purchase price and as to whether her performance thereof was excused by waiver or estoppel. In the circumstances, summary judgment should not have been granted.