SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
June 19, 1969
F. STEVEN BERG, RESPONDENT,
AUTO WHEEL INDUSTRIES, INC., ET AL., APPELLANTS
Appeal from order of Erie Special Term granting motion for partial summary judgment.
Goldman, P. J., Del Vecchio, Marsh, Gabrielli and Moule, JJ.
Memorandum: Aside from factual issues relating to the scope and nature of the alleged agreement for payment of plaintiff's legal services, the record discloses a serious question of the interpretation and meaning, as well as the intention of the contracting parties in their use of the words, "trade fixtures" which were part of the clause limiting the purchaser's liability to assume payment of certain of seller's obligations. This is especally so in light of the fact that plaintiff drew the agreement which forms the basis of this controversy. When language employed in a contract is not free from ambiguity, or when it is equivocal and the intent of the parties becomes a matter of inquiry, mixed questions of law and fact are present (Lachs v. Fidelity & Cas. Co. of N. Y., 306 N. Y. 357) and summary judgment should be denied. (Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25; Italian Benevolent Inst. v. Elaine Co., 240 App. Div. 196.) We further note that issues are presented as to plaintiff's performance of legal services as distinguished from his services as a director of a corporation. (Alexander v. Equitable Life Assur. Soc. of U. S., 233 N. Y. 300.)
Order unanimously reversed, with costs, and motion denied.
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