In an action to recover damages for breach of a construction subcontract, the appeal is (1) from an order which granted a motion for summary judgment striking out the answer and dismissing the counterclaims contained therein (Rules Civ. Prac., rule 113), and (2) from the judgment entered thereon. Order and judgment reversed, with one bill of $10 costs and disbursements, and *645motion denied, with $10 costs. In our opinion, the record discloses issues of fact which may not be summarily decided upon affidavits. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur.