Opinion
May 5, 1960
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Order unanimously affirmed, without costs of this appeal to either party. Memorandum: The claim of res judicata is not applicable. Therefore the defenses were not barred. Under the circumstances of this case, the question of whether the contract is ambiguous so that evidence should be taken as to its meaning on the trial should not be decided on a motion to strike. Bastow, J., concurs in result.