Order reversed, with costs in all courts to abide the event, and the matter remitted to Special Term for further proceedings not inconsistent with the following memorandum: The motion for summary judgment should be denied upon the ground that there exist issues of fact which should be resolved at a trial. Question certified answered in the negative. No opinion.

Concur: Judges Dye, Froessel, Van Voorhis and Burke. Chief Judge Desmond and Judges Fuld and Foster dissent and vote to affirm for the reasons stated in the opinion at the Appellate Division.