Majority
Triable issues are presented which cannot be determined upon the affidavits and exhibits, but must await trial. Defendant contends that plaintiff failed to provide defendant with satisfactory, usable stirrers, in accordance with the provisions of the purchase order, and failed to assemble the parts, as agreed. The letter of March 14, 1057, which contains the alleged admission of indebtedness upon which plaintiff relies in support of his motion for partial summary judgment, is not conclusive. It purports to answer a letter of March 9, 1957, which letter, however, does not appear in the record. The judgment and order are reversed, with costs, on the facts and law, and the motion of plaintiff denied, with $10 costs. Plaintiff, however, is entitled to obtain as speedy a trial as is feasible, under all the circumstances of this case.
Concur — Botein, P. J., Breitel, Frank, McNally and Bergan, JJ.