Opinion
March 20, 1972
In an action to recover damages for breach of contract, defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County, dated June 23, 1971, as, upon reargument, adhered to the original determination denying defendant's motion for summary judgment as to plaintiff's first cause of action without prejudice to renewal after particulars shall have been obtained and examinations held. Order reversed insofar as appealed from, on the law, with $10 costs and disbursements, and defendant's motion for summary judgment dismissing plaintiff's first cause of action granted. In our opinion, Special Term was in error in failing to grant defendant's motion for summary judgment as to plaintiff's first cause of action. Special Term correctly noted that whether cancellation of a contract is also a discharge of a prior breach is a matter of intention, to be ascertained from all the circumstances ( Eames Vacuum Brake Co. v. Prosser, 157 N.Y. 289; McCreery v. Day, 119 N.Y. 1; see, also, Goldbard v. Empire State Mut. Life Ins. Co., 5 A.D.2d 230). However, we are of the opinion that the conduct of the parties, as evidenced by the assignment of October 9, 1969 and the subsequent commitment agreements of October 30, 1969 and February 25, 1970, clearly manifested an intention by the parties to supersede the original commitment of September 6, 1967, as revised December 8, 1967, and to discharge all obligations arising therefrom. Rabin, P.J., Martuscello and Latham, JJ., concur; Hopkins and Munder, JJ., dissent and vote to affirm the order insofar as appealed from.