(dissenting). The refunds, not made until 1948, were not due to any state of facts in existence when the agreement was made or the corporate tax return was filed, but concededly were due to losses suffered by the corporation in later *632years and reflected back to the tax year 1943 by the so-called “ carry-back ” provisions of the Federal tax laws. There is an issue of fact as to the intention of the parties which should await a trial, viz., whether the parties intended that any corporate tax refund whatsoever based on corporate losses in subsequent years was within the contemplation of the parties when the agreement was entered into. The application for a refund was based on losses in the subsequent years, 1944 and 1945, and not on any claim that the tax paid in 1943 was in excess of or was an overpayment of the tax due for that year as such. Summary judgment is sought on the ground that no defense exists. However, the agreement is silent with respect to the precise state of facts which has occurred. No intent is expressed in the agreement to provide for a refund predicated on future losses. The agreement tentatively allowed $9,700 as plaintiff’s contribution to the estimated tax for 1943, subject to a refund of any part if such estimated tax were found to be excessive. The later refund obtained on the 1943 tax related to losses in 1944 and 1945 and not on overpayment of 1943 taxes as such.
Plaintiff’s unilateral interpretation of the agreement reads into the agreement an intention that is not expressed. To determine the real intention of the parties a plenary trial should be had, and summary judgment denied.
. Accordingly, I dissent and vote to aflirm.
, Callahan, Van Voorhis and Breitel, JJ., concur in Per Curiam opinion; Dore, J. P., dissents and votes to affirm, in opinion, in which Cohn, J., concurs.
Order, so far as appealed from, reversed, with $20 costs and disbursements to the appellant and the motion for summary judgment granted in all respects. Settle order on notice.