Federal Terra Cotta Co. v. Margolies — 215 A.D. 651

Majority

p. 651

First Department,

October, 1925.

Federal Terra Cotta Company, Appellant, v. Edward Margolies, Respondent.

Headnote

Pleadings — summary judgment denied where conclusion depends on varying inferences to be drawn from facts.

Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on December 19, 1924, denying a motion for an order striking out the answer of the defendant and for judgment under rule 113 of the Rules of Civil Practice.

Whether or not there was a waiver of performance after the due date, and whether the defendant acquiesced in plaintiffs completing the work after knowledge that it would not be completed on time, depend upon facts from which varying inferences may be drawn, and, therefore, the motion for summary judgment was properly denied. The order appealed from should be affirmed, with ten dollars costs and disbursements. Present •— Clarke, P. J., Dowling, McAvoy, Finch and Burr, JJ. Order affirmed, with ten dollars costs and disbursements.