Cardinal Lumber Co. v. Lincoln Park Builders Supply, Inc. (8 A.D.2d 839, 1959)

In an action to recover a balance due for goods sold and delivered, and for other relief, the appeal is (1) from an order granting respondent’s motion for partial summary judgment, and denying appellant’s cross motion for partial summary judgment, and (2) from the judgment entered thereon. Order modified by striking therefrom the ordering paragraphs and by substituting therefor the following: “ Ordered, that the plaintiff’s motion and the defendant’s cross motion be and the same hereby are in all respects denied.” As so modified, order unanimously affirmed, without costs, and judgment vacated. In our opinion, the record discloses issues of fact which should not have been decided summarily on motion. If it be assumed that the affidavit of appellant’s president in answer to respondent’s motion attempted to assert a defense of accord and satisfaction, appellant was not precluded from asserting that defense in opposition to the motion because it had not been pleaded (cf. Curry v. Mackenzie, 239 N. Y. 267). Present — Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.