Order unanimously modified by reversing that portion which granted summary judgment, on the ground that a triable issue exists as to the status of Franjóme, and as so modified affirmed, without costs of this appeal to any party. Memorandum: Under the facts in this ease a trial is required to determine whether Franjoine Trucking, Inc., was a subcontractor or merely a materialman On the 'construction project. The deposition of the president of the trucking concern, who was not cross-examined by appellants’ counsel, is not *717conclusive on the question of Franjoine’s status, and the existence of a contract between it and the general contractor does not in itself constitute a materialman a subcontractor (Dorn v. Johnson Corp., 16 A D 2d 1009). (Appeal from order of Niagara Special Term denying defendants’ motion to dismiss three causes of action in complaint or for summary judgment and granting partial summary judgment to plaintiff as to mechanic’s lien.)
Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.