This is an appeal from a Special Term order which granted plaintiff’s motion for summary judgment but stayed the “ entry of judgment on plaintiff’s complaint * * * until final determination of the counterclaims, if they are amended.” At the time summary judgment was granted, Special Term also granted a companion motion made by the plaintiff pursuant to rule 109 of the Rules of Civil Practice dismissing two counterclaims for legal insufficiency with leave to amend. The defendant then served amended counterclaims. Thereafter, on the plaintiff’s motion to dismiss the amended counterclaims for insufficiency, Special Term held the first counterclaim stated a cause of action. On this record, therefore, it appears that insofar as the counterclaim is concerned, it has been held sufficient as a pleading although it has not been tested with respect to a motion for summary judgment buttressed by affidavits containing proof of underlying facts. Moreover, the affidavits on both sides did not fully apprise the court of all the facts and circumstances concerning the execution and delivery of the alleged release and *820settlement. Some of ns believe that the release, which Special Term aptly characterized as “shrouded in mystery”, raises issues of fact not satisfactorily resolved by the affidavits. Under the circumstances, the order should be reversed on the law, without costs and disbursements, and the motion for summary judgment should be denied without prejudice to a new application for summary judgment upon the complaint and the amended answer, if either of the parties be so advised. Appeal dismissed.
Concur — Botein, P. J., Breitel, Frank, Valente and McNally, JJ.