Opinion
April 15, 1965
Order, entered on January 14, 1965, denying plaintiff's motion for summary judgment, unanimously affirmed, without costs or disbursements. A mixed issue of law and fact is presented as to whether the prosecution of the suit, for a dissolution of the partnership and an accounting, constituted an inconsistent election of a remedy and a waiver of the right to sue on the contract to compel repurchase of plaintiff's interest in the partnership. That issue cannot properly be determined from the papers. If at all feasible, the parties should obtain a resolution of the triable issue presented in consolidation with the partnership accounting action.
Concur — Breitel, J.P., Valente, McNally, Steuer and Bastow, JJ.