I dissent and would affirm the denial of the bank’s motion for summary judgment. The facts, insofar as can be gleaned from the uncompleted examinations, raise serious and unfeigned issues as to the bank’s knowledge of the diversion of the corporate funds to noncorporate purposes. It was clear that Towers was in extremis, yet the bank continued to advance loans under dubious circumstances, including an indication that following the resignation of Gross funds were being diverted by him to noncorporate purposes. Thus, there is generated legitimate doubt as to the propriety of summary judgment which compels its denial. The terms of the obligation of the decedent Shapiro may be unambiguous but the facts, to which the unambiguous obligation was to attach, or out of which such obligation was to be born, are far from clear in this case. Special Term was correct in exercising caution. See Glick & Dolleck v. Tri-Pac Export Corp. (22 N Y 2d 439, 441).
Eager, J. P., and Nunez, J., concur with Steuer, J.; MgGivern, J., dissents in opinion.
Order entered on October 21, 1968, reversed, on the law, with $50 costs and disbursements to appellant, the motion granted awarding summary judgment to plaintiff for the relief demanded in the complaint, and the Clerk is directed to enter judgment accordingly.