Order modified so as to provide that the motion of the plaintiff for summary judgment be denied, and as so modified affirmed, -with ten dollars costs and disbursements to appellant. In our opinion there are issues to be tried, and equities to be adjusted between the parties. (See sections 1083-a and 1083-b of the Civil Practice Act, added by chapter 794 of the Laws of 1933.) Lazansky, P. J., Hagarty, Seudder, Tompkins and Davis, JJ., concur.