Gale v. Frost-Anderson Sales Co. , 216 A.D. 780 ( 1926 )

Per Curiam:

The plaintiff construes the contract as meaning that he is entitled to $750 as the purchase price of the Star car. The phrase “ sale price of his Star car of not less than $750.00 is to be refunded ” does not require such construction as matter of law. It may mean that the plaintiff shall be entitled to a payment only in ease defendant has resold the car, implying that if the car has not been resold, the car itself is to be returned. If the clause is ambiguous, and we incline to think it is ambiguous, its construction depends on the intention of the parties and a substantial question of fact is presented. (Lamb v. Norcross Bros. Co., 208 N. Y. 427; Braxton v. Mendelson, 233 id. 122.) However, if the phrase is deemed not to be ambiguous, but to be properly construed as entitling the plaintiff to the sum of money only in case of a resale by the defendant, the plaintiff is not entitled to summary judgment, (a) because the complaint fails to allege a cause of action on such theory; and (b) because on the affidavits themselves the plaintiff’s prima facie proof of a sale is overcome, at least sufficiently to raise a question of fact as to whether or not there had been a resale of the Star car. The. judgment should be reversed, with costs, the order vacated, and the motion denied, with ten dollars costs. Present •—■ Hubbs, P. J., Davis, Sears, Crouch ■ and Taylor, JJ. All concur. Judgment and order reversed on the law, with costs, and motion denied, with ten dollars costs.