Louis Gendelman Rigging & Trucking, Inc. v. Koeppel , 285 N.Y.S.2d 310 ( 1967 )

In an action to recover a sum of money for work, labor and services, defendants appeal (1) from so much of an order of the Supreme Court, Kings County, dated July 18, 1967, as granted plaintiff’s motion for partial summary judgment and severed the action and (2) from the judgment entered on said order. Order reversed insofar as appealed from and judgment reversed, on the law, without costs, and said motion denied. In our opinion, the papers submitted created doubt as to the existence of a triable issue, namely, whether plaintiff had actual knowledge, at the time the contract was made, that defendants were acting as an agent and knew the identity of the alleged principal (Ell Dee Clothing Co. v. Marsh, 247 N. Y. 392, 398; Unger v. Travel Arrangements, 25 A D 2d 40, 47; Special Sections v. Rappaport Co., 25 A D 2d 896; Empire Livestock Marketing Coop. v. Carney, 279 App. Div. 951). Where such doubt exists, a motion for summary judgment should be denied (Millerton Agway Coop. v. Briarcliff Farms, 17 N Y 2d 57, 61). Christ, Acting P. J., Brennan, Hopkins and Munder, JJ., concur; Rabin, J. dissents and votes to affirm the order insofar as appealed from and to affirm the judgment.