Opinion
May 20, 1942.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Order modified on the law and facts by striking out the second ordering paragraph thereof and as modified affirmed, without costs of this appeal to either party. Memorandum: The moving and answering affidavits raise a question of fact as to which one of the writings is the contract between the parties. This being the case, neither party was entitled to summary judgment. Until the terms of the contract are established, the court cannot determine whether such contract is objectionable in point of law. All concur. (The order denies defendant's motion for summary judgment and directs judgment for plaintiff for damages alleged in the complaint to be assessed by a jury, in an action for breach of contract.)