The order appealed from should be reversed. Defendant’s affidavit, submitted in opposition to the motion to dismiss, raises questions of fact sufficient to require a reversal of the order—thereby reinstating the defense and counterclaim. While plaintiff asserts that its complaint does not bring up for review all the transactions between these two parties over a nine-year period, but pertains solely to three distinct housing developments, review of the defendant’s affidavit shows that it is contesting, inter alia, the work allegedly performed on some of these very jobs. Whether the defendant may also contest in this action plaintiff’s performance of and the value of other jobs performed for the defendant must, because of the interrelationship of these events, be left initially to the trial court for determination. Only upon a trial can these issues be adequately sorted out and determined.
Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen concur.
Order reversed, with costs in this court and in the Appellate Division, and the order of Special Term reinstated, in a memorandum.