HUGHES CO. v. SAPPHIRE REALTY CO.

Attorney(s) appearing for the Case

Ferdinand Pecora and Lawrence C. Gibbs for appellants.

Abraham Dollinger and Jacob W. Friedman for respondent.

Chief Judge DESMOND and Judges FULD, BURKE and FOSTER concur in Per Curiam opinion; Judges DYE, FROESSEL and VAN VOORHIS dissent and vote to reverse upon the ground that triable issues of fact were presented by the pleadings and affidavits as to the conclusiveness of the architects' final certificate of damage on the issue of performance, and value of the work, as well as to the propriety, reasonableness and necessity of the expenditures and the extent of rebates received, all solely within the knowledge of respondent, who by this cost plus contract had expressly placed itself in a "trust and confidence" relationship. Accordingly, the motion for partial summary judgment should be denied.