New Dorp Coal Corp. v. Frankel — 281 N.Y. 550

Majority

p. 550

New Dorp Coal Corporation, Respondent, v. Irving Frankel et al., Defendants, and Sidney Raiken et al., Appellants.

Argued November 15, 1939;

decided November 28, 1939.

p. 553

Aaron Lipper and Philip Isaacs for appellants.

Herbert Ginzberg and Solomon R. Agar for respondent.

The contract in question is ambiguous. It was, therefore, error to strike out the first affirmative defense in the appellants’ answer and to grant summary judgment in favor of the plaintiff.

The order striking out the first affirmative defense in appellant’s answer should be reversed and the motion denied. Summary judgment in favor of the plaintiff should be reversed and a trial ordered, with costs to abide the event. J. * - •

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.