Opinion
June, 1934.
Order of Appellate Term affirming judgment of the City Court of the City of New York, Borough of Brooklyn, reversed on the law, with costs, judgment of the City Court reversed on the law, with costs, and motion for summary judgment denied, with ten dollars costs and disbursements. The appeal from the summary judgment was reviewable by the Appellate Term. ( Donnelly v. Bauder, 217 App. Div. 59; Endicott Johnson Corporation v. Foldesy, 248 N.Y. 655.) Plaintiff was not entitled to summary judgment. There are issues of fact to be tried. ( Britton v. Marks, 105 App. Div. 85.) The Statute of Frauds may be invoked as a defense. ( Standard Oil Co. v. Koch, 260 N.Y. 150.) Lazansky, P.J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.