Summary judgment was improperly granted as there were issues which should await trial. Defendants were not bound by statements of affiants or testimony of witnesses in prior proceedings to which they were not parties. In so far as plaintiff’s right to recover rests on the failure to return the execution, and the rule as to the presumption of damage arising therefrom, we think that there were facts and circumstances which sufficiently rebutted that presumption and created an issue as to the actual damage suffered.
*887The orders and judgment should be reversed, with costs, and the motion denied. Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ. Judgment and orders unanimously reversed, with costs to the appellants, and the motion denied.