There is presented to us the question whether on this record the granting of a motion for summary judgment in favor of defendant was proper. Plaintiff’s affidavit makes out its cause of action for breach of contract. While defendant did not plead the facts as a separate defense, it seeks to avoid liability by alleging affirmatively in its affidavits that pláintiff’s "designation as broker was rescinded by the insured, James Stewart Company Associates. Plaintiff in turn does not deny the attempted substitution of brokers but seeks to avoid the holding in Clinchy v. Grandview Dairy, Inc. (283 N. Y. 39), by showing that' it was procured through the intervention of defendant acting in its own interest and not because the substitution was directed by the insured. No affidavit was submitted by defendant from any officer or agent of James Stewart Company Associates. If the plaintiff can succeed in this effort, the Clinchy case may be distinguished upon two grounds: (1) Because of defendant’s bad faith and (2) Because here the policies were delivered and the insurance was in effect for over *101 two months when brokers other than plaintiff were designated. These questions appear to us to be open, notwithstanding the former dismissal of a cause of action predicated upon bad faith. Questions are presented which require a trial.

The judgments should he reversed and the motion for summary judgment denied, with costs in all courts.

Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ., concur.

Judgments reversed, etc.