Opinion
January 5, 1950.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ.
Order affirmed, with $10 costs and disbursements. Memorandum: Appeal from an order of the Supreme Court, Monroe County Special Term, denying defendant's motion to dismiss the complaint herein under rule 107 of the Rules of Civil Practice. The motion was made upon three grounds: (1) that the court had no jurisdiction of the subject matter of the action, (2) that the plaintiff had released and/or accepted an accord and satisfaction of the subject of the action, and (3) the complaint failed to allege facts sufficient to constitute a cause of action. Questions of fact are involved which preclude a decision of these issues as a matter of law. The motion was properly denied. (See Soporito v. Hetzler Foundries, Inc., 269 App. Div. 962, affd. 295 N.Y. 922; Surace v. Pfaudler Co., 269 App. Div. 962, affd. 295 N.Y. 923; Hurd v. Republic Steel Corp., 268 App. Div. 936, appeal dismissed 294 N.Y. 736.) All concur. (Appeal from an order denying defendant's motion to dismiss plaintiff's complaint.)