In the presence of conflicting claims and open factual questions, I do not think Special Term exercised improper judgment in denying summary judgment to both parties herein. There is an unresolved dispute as to the actual number of shares of the stock sold. And the ramifications of the 27th finding of fact made by the Hon. Richard H. Levet in the decision rendered by him on July 13, 1967 in the action commenced by defendant in the United States District Court for the Southern District of New York are not clarified. Thus, I am unconvinced ‘ ‘ that no material and triable issue of fact is presented ”. (Glick & Dolleck v. Tri-Pac Export Corp., 22 N Y 2d 439, 441.)
Eager, J. P., Capozzoli, McNally and Stetter, JJ., concur in Per Curiam opinion; MoGtvere, J., dissents in opinion.
Order entered on March 20, 1968, modified on the law to grant summary judgment to plaintiff on the first cause of action for $4,669.06, and to direct an assessment of damages on the second cause of action; and, as so modified, affirmed with $50 costs and disbursements to plaintiff-respondent-appellant.