Amended order modified in accordance with the memorandum and as modified is, together with the order affirmed, with $10 costs and disbursements to the defendant.
Memorandum:
In view of the relief demanded in the complaint it is doubtful if plaintiff had the right to move for summary judgment. Moreover, the answer and answering affidavits raise factual issues that must await trial. Special Term correctly denied plaintiff's motion. Its attempt to decide one...
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