Slater v. Gulf, Mobile & Ohio Railroad

Peck, P. J., and Callahan, J.

(dissenting in part). We think that the letter of May 25, 1945, appears on its face to be a contract, at least binding the defendants to a good faith effort to carry it out. There are triable issues as to whether under *173the suggested complexities of the situation a firm agreement was made, and whether failure to carry out the program was excusable or a breach of good faith and the obligations undertaken. Determination of the issues should await trial.

In our opinion, therefore, the order denying plaintiffs’ motion for summary judgment should be affirmed and the order granting defendants’ cross motions for summary judgment and for judgment on the pleadings should be reversed and the motions denied.

Glennon and Cohn, JJ., concur with Does, J.; Peck, P. J., and Callahan, J., dissent in part in opinion.

Order dated April 19, 1951, denying plaintiffs’ motion for summary judgment affirmed. Order dated April 27, 1951, granting defendants ’ cross motion with leave to the plaintiffs to serve an amended complaint as to their second cause of action should be modified upon the law and the facts; and, on the stipulation at Special Term, defendants’ cross motion as to the second cause of action is considered as one for summary judgment and said motion is granted dismissing complaint without leave to plaintiffs to replead; and, as so modified, said order is affirmed, with $20 costs and disbursements on said appeals to defendants. Settle order on notice. [See post, pp. 655, 790.]