Opinion
December 14, 1964
MEMORANDUM BY THE COURT. The individual defendants appeal from an order of the Supreme Court at Special Term denying their motion to dismiss the complaint upon the ground that the pleading fails to state a cause of action. (CPLR 3211, subd. [a], par. 7.) The complaint alleges the breach of a written agreement entered into by the parties whereby defendants, jointly and severally, agreed to repurchase from plaintiffs at a fixed price and within one year from its date 3,000 shares of the capital stock of defendant corporation delivered to them in part payment of the purchase price of a miniature automobile racetrack. Since time is not stated to be of the essence, we think that the motion was properly denied to permit the development at the trial of the circumstances bearing upon the materiality which the parties intended to accord the time provision of the contract. The prior denial of plaintiffs' motion for summary judgment is not res judicata. Order affirmed, with $10 costs. Gibson, P.J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.