Opinion
February 3, 1939.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., O'Malley, Townley, Cohn and Callahan, JJ.
We think that the issue as to whether defendants were released by plaintiff should not have been summarily decided upon the affidavits submitted. Upon the proof it does not conclusively appear that the claims against the defendants set forth in the complaint have been released.
The orders granting the motions to dismiss the complaint and the judgment entered thereon should be reversed, with costs, and the motions denied, with leave to defendants to set up the claim of release by answer within twenty days after service of a copy of order, with notice of entry thereof, upon payment of said costs.
Orders and judgment unanimously reversed, with costs, and the motions to dismiss the complaint denied, with leave to the defendants to answer, setting up the claim of release, within twenty days after service of a copy of the order, with notice of entry thereof, upon payment of said costs.