Opinion
March 19, 1951.
In an action by a seller of goods for damages alleged to have resulted from the buyer's breach of contracts of sale, order granting plaintiff's motion under rule 113 of the Rules of Civil Practice for summary judgment, striking out defendant's answer and directing judgment in plaintiff's favor, reversed on the law and the facts, with $10 costs and disbursements, plaintiff's motion denied, and the judgment entered upon said order vacated, without costs. Order denying defendant's cross motion for summary judgment dismissing the complaint affirmed, without costs. In our opinion this record presents controverted issues of fact as to the agreements made by the parties and their continuance material to the determination of the controversy, which may not be summarily determined by motion but must await trial. ( Werfel v. Zivnostenska Banka, 287 N.Y. 91, 93; Curry v. Mackenzie, 239 N.Y. 267, 272; Gross v. Continental Rubber Export Corp., 262 App. Div. 866.) Carswell, Acting P.J., Johnston, Adel, Sneed and MacCrate, JJ., concur.