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LYNDA J. YOURTH v. WILLIAM E. BOGGS (10/23/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 23, 1969

LYNDA J. YOURTH, RESPONDENT,
v.
WILLIAM E. BOGGS, APPELLANT

Concur -- Eager, J. P., Capozzoli, Tilzer, Nunez and Macken, JJ.

Plaintiff's marital status prior to October, 1966 has been placed in issue by defendant's evidence. Sufficient circumstantial facts were proffered to lead a reasonable mind to conclude that plaintiff married Stuart Walker during 1966. Summary judgment may not be granted where there is any doubt as to the existence of material and triable issues of fact -- or where the issue is arguable -- issue finding rather than issue determination is the key to summary judgment. (See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395.) With respect to the March 4, 1966 written agreement, it appears that plaintiff accepted support payments thereunder without objection, thereby waiving the formality of its execution required by the original agreement. On the facts in this record we find the March 4, 1966 writing to constitute a valid modification of the prior agreement rather than an executory accord within the purview of section 15-501 of the General Obligations Law.

Disposition

Order entered April 22, 1969 granting plaintiff summary judgment, and judgment entered thereon April 30, 1969, unanimously reversed, on the law, without costs or disbursements, the judgment vacated and the motion denied.

19691023

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