I dissent and vote to affirm the order denying dismissal of the first, second and fifth causes of action and summary judgment as to the third, fourth, sixth and seventh causes of action.
Special Term held that on the basis of the conflicting and voluminous affidavits before the court there were issues of fact with respect to (1) the true intent of the signatories to the agreement, (2) the exact meaning of “ good and clear title” to the leasehold interest involved, (3) whether or not the individual defendants properly segregated plaintiff’s purchase money, (4) whether the individual defendants defrauded plaintiff, and (5) whether defendant Rubin was authorized to act for the corporate defendant. I agree.
These issues cannot and should not be determined upon affidavits. Plaintiff should have the opportunity to further explore and develop them at a trial. *921In my opinion summary disposition here will unfairly deny plaintiff his day in count.
Stevens, P. J., Markewieh and Steuer, JJ., concur in Per Guriam opinion; Nunez, J., -dissents in opinion.
Order entered on December 6, 1968, reversed on the law, with $50 costs and disbursements to -the appellants, and the motion granted. The Clerk is directed to enter judgment in favor of the appellants dismissing the complaint.