Majority
p. 1012Andrew A. McKinney et al., Doing Business as Mt. Pleasant Appliance Co., Respondents, v. William J. Penachio et al., Individually and Doing Business as Complete Refrigerator Supply, Appellants.
The documentary proof creates a triable issue as to whether the earlier overriding commission contract, upon which this action is based, was rescinded and waived. Accordingly the
p. 1013
motion for summary judgment should have been denied. Judgment and order appealed, from unanimously reversed, with costs to the appellants, and the motion for summary judgment denied. Present — Peck, P. J., Cohn, Callahan, Van Voorhis and Shientag, JJ.