Opinion
March 31, 1966
Appeal from the Niagara Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Order unanimously modified by reversing that portion which granted summary judgment, on the ground that a triable issue exists as to the status of Franjoine, and as so modified affirmed, without costs of this appeal to any party. Memorandum: Under the facts in this case a trial is required to determine whether Franjoine Trucking, Inc., was a subcontractor or merely a materialman on the construction project. The deposition of the president of the trucking concern, who was not cross-examined by appellants' counsel, is not conclusive on the question of Franjoine's status, and the existence of a contract between it and the general contractor does not in itself constitute a materialman a subcontractor ( Dorn v. Johnson Corp., 16 A.D.2d 1009).