Morgenstern v. Webb & Knapp, Inc. , 174 N.Y.S.2d 449 ( 1958 )

The agreement herein involved is ambiguous and the affidavits submitted are insufficient to establish what the parties actually intended. However there may be evidence available which possibly might resolve the ambiguity. The order appealed from is modified on the law so as to strike therefrom the paragraph granting defendant’s motion for summary judgment dismissing the complaint and directing that judgment be entered thereon. As thus modified the order is affirmed. The judgment entered pursuant to the order granting summary judgment is vacated. No costs. Settle order. Concur — Botein, P. J., Rabin, Frank, McNally and Stevens, JJ.