¶1We think that issues of fact are raised by the pleadings and affidavits which may not be summarily determined. There should be a full adducement of all material evidence upon a trial of this action. In the circumstances of this case, Special Term should not have granted defendant’s motion dismissing the complaint on the merits and for summary judgment.
¶2The judgment and order should be reversed with costs, and the motion to dismiss the complaint denied.
¶3Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.; Dore, J.,] dissents and votes to affirm.
¶4Judgment and order reversed with costs, and the motion denied.