Opinion
May 18, 1971
Appeal from an order of the Supreme Court, Schenectady County, denying motions to dismiss the complaint for failure to state a cause of action and for summary judgment. In January, 1964 respondent, engaged in the business of leasing cranes, riggers and similar heavy construction equipment, leased certain equipment to appellant which subsequently was allegedly damaged in the amount of $50,000. Respondent seeks indemnification for these damages from appellant both on the basis of express contractual liability and custom in the trade, and appellant denies any such right of indemnification. Special Term in denying the motions found present triable issues of fact which precluded the relief sought, and we concur in this decision. In deciding the instant motions the facts stated by respondent in its pleadings must be taken as true (e.g., Dulberg v. Mock, 1 N.Y.2d 54) and the complaint construed liberally and most favorably to the respondent (e.g., Heram Holding Corp. v. City of Albany, 33 A.D.2d 1086, 1087). Here respondent has set forth facts, which if taken as true, may give rise to a recovery. There are factual issues raised as to the existence of express contractual liability which turns on the effect to be given to the indemnity provision contained in the "rental agreements" (see, generally, N.Y. Contracts Law, § 1814) and on the authority of the signer of the "rental agreements" to bind appellant. In addition there is raised the factual issue of liability predicated on custom and usage. The question of whether a binding contract exists is basically one of the intent of the parties ( Matter of Ahern v. South Buffalo Ry. Co., 303 N.Y. 545, affd. sub nom. South Buffalo Ry. Co. v. Ahern, 344 U.S. 367), and where the intent of the parties becomes a matter of inquiry, mixed questions of law and fact are present precluding summary judgment ( Berg. v. Auto Wheel Ind., 32 A.D.2d 876). Order affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.