Grunder v. Schwab ( 1944 )

Per Curiam.

The order should be modified by granting summary judgment dismissing the fourth charge in the complaint, as consented to by plaintiff, and as so modified, affirmed, without costs.

In affirming the order insofar as it denies relief to defendants-appellants, we do not pass upon the merits of any of the three remaining charges asserted by plaintiff. We hold merely that upon the papers submitted there are presented issues of fact which cannot be summarily decided.

Martin, P. J., Townley, Cohn and Callahan, JJ., concur; Glennon, J., dissents and votes to reverse that part of the order which denies defendants’ motion for summary judgment and to grant said motion, and to affirm that part of the order which denies plaintiff’s cross motion for partial summary judgment.

Order modified by granting defendants’ motion for summary judgment upon the fourth charge in the complaint as consented to by plaintiff, and as so modified affirmed, without costs. Settle order on notice. [181 Misc. 488.] [See post, p. 946.]