In this action by plaintiff for breaches of warranty and of a subcontract, defendant contractor moved to dismiss plaintiff's amended complaint on the ground of release (Rules Civ. Prac., rule 107). The Appellate Division reversed Special Term's denial of the motion. The question presented on this appeal is whether on the record before us "facts tending to obviate" the "objection" have been shown (id., rule 108) (Town of North Hempstead v. Harper, 235 App. Div. 708, affd. 259 N.Y. 633;
Defendant's claim of release is predicated in part upon a document captioned "Release of Liens"
In our opinion, the "Release of Liens" document served to release liens and claims of liens of plaintiff subcontractor and nothing more. The reference elsewhere in the document to "claims", upon which defendant relies, means claims by laborers, contractors and materialmen of plaintiff subcontractor with which it is chargeable, and not the claims of plaintiff subcontractor itself against defendant contractor. The document read as a whole and construed in the light of general condition No. 30
Turning then to condition No. 25, we think a question of fact is presented as to whether the claims at bar were "previously made" and "unsettled" at the time of final payment. The relevant portion of plaintiff's affidavit (by its president, Powers) in opposition to the motion avers in substance that, while the work under the subcontract was being performed — prior, of course, to final payment — and the claims which are the subject of this action arose, such as delay by defendant, for example, "conferences were immediately had with the defendant's officers" and plaintiff's "claims" were made known (emphasis supplied). Specific reference to conferences in September and October of 1957 and the specific complaints respecting said claims made on those occasions are given in the affidavit as examples. Plaintiff maintained in the affidavit that it was advised at those times by defendant to continue with the work and that adjustments would be made upon completion of the contract, but they never were. Final payment was made on January 28, 1958.
Defendant's vice-president, in his reply affidavit below, after noting plaintiff's claims as just outlined, averred: "There were no unsettled contractual claims made by plaintiff at the time of final payment under said subcontract" (emphasis supplied); he had previously made the same assertion in his moving affidavit. Notwithstanding the foregoing, defendant now urges the absence of a factual dispute.
In this connection great stress is placed upon a letter written by plaintiff's then vice-president, one Stille (now deceased), to defendant, dated December 13, 1957. It marked the initiation of a series of correspondence culminating in a letter by defendant dated November 3, 1958 to the owner, General Aniline and Film Corp., asking it to make good plaintiff's loss for reasons
Accordingly, the judgment appealed from should be reversed; the motion under subdivision 6 of rule 107 denied, and defendant permitted to plead its defense in its answer; said answer to be served within 10 days after service of a copy of the order to be entered hereon, with costs.
Judgment reversed, with costs, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.