(dissenting). I dissent and would affirm Special Term in its conclusion that there is ‘ ‘ at least arguably triable or debatable issue ”.
The test is not whether we think the plaintiff should or will ultimately recover, but whether the defendant has raised an issue. “Issue-finding, rather than issue determination, is the key to the procedure ”. (Bakerian v. Horn, 21 A D 2d 714 [3d Dept., 1964].) And herein defendant, by two sworn affidavits has asserted that prior to the purchase order of defendant, signed only by its comptroller, there was an oral understanding with plaintiff that Regis would assume the financing on behalf of Credelco; but first Whirlpool would supervise and check out the equipment and provide operational training to the Credelco group. Then, Regis would be liable. Although two representatives of Whirlpool were allegedly present at this conference, no one on behalf of plaintiff has interposed an affidavit denying the conference or the oral understanding. This alone is sufficient to bar summary judgment.
Credence is given to defendant’s version of the actual agreement of the parties by the fact that in the purchase order of Regis is a credit item of $3,115, actually and previously paid by Credelco to Whirlpool before the entry of Regis into the discussions. This item in the Regis purchase order did not arise out of thin air. It could only have been the product of a meeting of the minds, orally expressed. Not to be overlooked is that Regis is in the business of financing enterprises and is not engaged in the business of installing laundry and dry-cleaning equipment.
Further, the oral understanding being a condition precedent, and not in any real sense contradictory of or inconsonant with the purchase order, is admissible. (Hicks v. Bush, 10 N Y 2d 488.)
*400Thus, I think Special Term acted prudently in denying the motion. 11 It never could have been, or in justice ought to have been, the intention of those who framed our Practice Act and rules thereunder that the decision of such a serious question as this should be flung off on a motion for summary judgment, Whatever the final judgment may be the defendants were entitled to have the issue deliberately tried and their right to be heard in the usual manner of a trial protected.” (Gravenhorst v. Zimmerman, 236 N. Y. 22, 38-39 [1923]; Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404 [1957].)
The disposition of Special Term was not erroneous.
Stevens, J. P., Eager and Tilzer, JJ., concur with Bastow, J.; McGtvern, J., dissents in opinion.
Order entered on May 17,1967, reversed, on the law, with $50 costs and disbursements to the appellant, and plaintiff’s motion for summary judgment granted, with $10 costs, with interest from March 17,1965.