Opinion
December 23, 1963
In an action against the defendant Capitol Coal Corporation, to recover the balance due for oil sold and delivered to it; and against the defendant Sabsevitz to recover upon his personal guarantee of payment for oil sold and delivered to the defendant corporation, the defendant Sabsevitz appeals, as limited by his brief: (1) from so much of an order of the Supreme Court, Kings County, dated August 21, 1963, as (a) granted plaintiff's motion for summary judgment, striking out his answer; and (b) denied his cross motion for such relief, dismissing the complaint; and (2) from so much of the judgment of said court, entered August 23, 1963 upon such order, as is against him upon the guarantee. Order and judgment, insofar as appealed from, affirmed, without costs. No opinion. Beldock, P.J., Ughetta and Rabin, JJ., concur; Kleinfeld and Hopkins, JJ., dissent and vote to reverse the order and judgment insofar as appealed from, to sever the action as against the defendant Sabsevitz, and to deny both the plaintiff's motion for summary judgment against him and his cross motion for the same relief, with the following memorandum: In our opinion, the written guarantee is ambiguous. It cannot be properly interpreted without an examination of the circumstances surrounding its execution and delivery. The affidavits in the record disclose a sharp conflict as to the exact nature of these circumstances. In view of the ambiguity in the written guarantee and of the conflict in the affidavits, the interpretation of the guarantee should not be made without a plenary trial.