Balestrieri v. Povolny , 175 N.Y.S.2d 574 ( 1958 )

In an action to recover damages for conversion, the appeal is (1) from so much of an order as granted a. motion for summary judgment dismissing the complaint, and (2) from the judgment entered thereon. Order modified by striking from the second ordering paragraph the words “granted, and the plaintiff’s complaint be and the same hereby is dismissed on the merits”, and by substituting therefor the word “ denied As so modified, order insofar as appealed from unanimously affirmed, with $10 costs and disbursements to appellant, and judgment vacated. In our opinion, the record presents triable issues of fact. Present — Nolan, P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ.