Opinion
March 8, 1962
Order, entered on September 18, 1961, denying plaintiffs' motion for summary judgment and granting summary judgment in favor of defendant, unanimously modified, on the law, to the extent of denying defendant's motion for summary judgment, and as so modified, the order is affirmed, with $20 costs and disbursements to plaintiffs-appellants. Judgment dismissing the complaint upon the order granting defendant's motion for summary judgment, unanimously reversed, without costs. In our opinion, the record presents issues of fact which should be resolved after a plenary trial, and neither party is entitled to summary judgment. Sufficient to require a trial, at the least, is the issue of whether defendant did give plaintiffs any release of restrictions when plaintiffs paid $1,250 to defendant; as well as what restrictions defendant agreed to remove and the exact nature of the restrictions plaintiffs sought to be removed.
Concur — Botein, P.J., Rabin, Valente, Eager and Bergan, JJ.