Fredburn Construction Corp. v. City of N.Y. , 280 N.Y. 402 ( 1939 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] We are of the opinion that upon the motion made by defendant for summary judgment under rule 113 of the Rules of Civil Practice, a substantial question of fact was presented which entitled the plaintiff to a trial of the issue as to whether the so-called last payment voucher was intended and understood to be a last payment voucher and whether plaintiff was barred by accepting the so-called last payment from recovering any further payments from the defendant.

The judgments should be reversed and the motion denied, with costs to the appellant to abide the event.

LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; O'BRIEN, J., dissents; CRANE, Ch. J., taking no part.

Judgments reversed, etc.