247 A.D. 209 | N.Y. App. Div. | 1936
The original order provided that the entire matter be referred to a referee to assess damages. The resettled order, herein appealed from, granted plaintiff partial summary judgment In the sum of $1,350, with interest, representing weekly payments of fifty dollars each which the court considered to be absolutely due under the terms of the contract (Rider 4) and directed that as to the balance of the claim with respect to profits the action be severed.
We consider, however, that .the affidavits submitted sufficiently raise issues which require that judgment be not entered until after a full disclosure of all the facts at trial, including the ascertainment in the light of all the facts and circumstances. of the true intent of the parties and the proper construction of the clause in issue.
The order awarding partial summary judgment and severing the action as to the balance of the claim and the judgment entered thereon, should accordingly be reversed, with costs, and the motion denied.
Present — Martin, P. J., McAvoy, O’Malley, Dore and Cohn, JJ.
Judgment and order unanimously reversed, with costs, and the motion denied.
