Opinion
March 2, 1961
Order, entered on April 21, 1960, granting plaintiff's motion for summary judgment, and judgment entered thereon, unanimously reversed, on the law and on the facts, and the motion denied, with costs to abide the event. There is a triable issue as to whether the contract for the sale of the property and the check issued by plaintiff were conditionally delivered. The fact that both the written contract and the check were undated tends to lend some credence to defendants' version of the transaction, at least to the extent of requiring further exploration by testimony.
Concur — Botein, P.J., Rabin, Valente, McNally and Eager, JJ.