Opinion
July, 1935.
Order in so far as it grants plaintiff's motion for summary judgment reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. In so far as it denies defendants' motion for summary judgment, the order is affirmed, without costs. In this case there are questions of fact which can be determined only upon a trial. There are also questions of law which can be solved only after all of the facts are presented. Paragraph sixth of the contract seems to be ambiguous. It may mean that the defendants were required to call for the stock. Parol proof would be admissible to show the intention of the parties. Plaintiff's rights under the contract are limited to 114 shares in the absence of proof of an assignment of Katherine E. Kopp's rights under the contract. Lazansky, P.J., Young, Hagarty, Carswell and Tompkins, JJ., concur.