Opinion
November 29, 1960
Order and judgment unanimously modified on the law, to delete therefrom all of the ordering and adjudicating paragraphs excepting only the final paragraphs thereof, with costs to appellant, and plaintiffs' motion for summary judgment denied, with $10 costs. It appears from the record that there exist issues of fact which may only be resolved at a trial. The affirmance of the order insofar as it denies defendant's cross motion is without prejudice to an application by plaintiffs Rosenblatt and Klinger for a stay of the action brought by Firestone against them pending the trial of the action by Rosenblatt and Klinger. Settle order on notice.
Concur — Breitel, J.P., Rabin, Valente, Stevens and Eager, JJ. Motion for a stay dismissed, having become academic by virtue of the decision of this court herein.
Concur — Rabin, J.P., Valente, McNally, Stevens and Eager, JJ.