Opinion
December 21, 1942.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., Glennon, Dore, Cohn and Callahan, JJ.; Dore, J., dissents and votes to affirm.
Judgment and order reversed with costs, and the motion denied.
We think that issues of fact are raised by the pleadings and affidavits which may not be summarily determined. There should be a full adducement of all material evidence upon a trial of this action. In the circumstances of this case, Special Term should not have granted defendant's motion dismissing the complaint on the merits and for summary judgment.
The judgment and order should be reversed with costs, and the motion to dismiss the complaint denied.