Everybody's Publishing Co. v. Fawcett Publications, Inc.

Order unanimously affirmed, without costs of this appeal to either party. Memorandum: The claim of res judicata is not applicable. Therefore the defenses were not barred. Under the circumstances of this ease, the question of whether the contract is ambiguous so that evidence should be taken as to its meaning on the trial should not be decided on a motion to strike. Bastow, J., concurs in result. (Appeal from order of Erie Special Term denying motion to strike out certain paragraphs of the amended answer.) Present — Williams, P. J., Bastow, Goldman, Halpern and McClusky, JJ.