Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.
Motion for reargument granted, memorandum, decision dated May 27, 1968 (30 A.D.2d 623) recalled and, upon reargument, order of the Supreme Court at Special Term (54 Misc. 2d 238 Crangle, J.) entered September 21, 1967 in Albany County, affirmed, without costs. The lucid opinion at Special Term correctly determined the basic questions of law arising upon the factual contentions advanced by defendant (54 Misc. 2d 238; see, also, Matter of Vinarsky, 287 F. Supp. 446; U.S. Dist. Ct., N. D. N. Y., Mar. 29, 1968, Foley, J.; contra, Recchio v. Manufacturers & Traders Trust Co., 55 Misc. 2d 788); but we modified the Special Term order, holding that "In view of the existence of factual questions, summary judgment should not have been granted to respondent" (30 A.D.2d 623). These factual questions have now been resolved pursuant to stipulation of the parties dated June 14, 1968.