In an action, inter alia,, to declare a vendee’s lien upon certain real property, in which defendant counterclaimed to recover damages for breach of contract, plaintiffs appeal from an order of the Supreme Court, Westchester County, dated February 6, 1974, which granted defendant’s motion (1) for summary judgment dismissing the complaint and (2) for partial summary judgment on the counterclaim and for assessment of damages. Order reversed, without costs, and motion denied. While the contents of the January 29, 1973 letter of plaintiffs’ attorney is strong evidence against plaintiffs, there are nevertheless issues of fact with respect to whether the acts of defendant’s son are binding on defendant. No affidavit was submitted by defendant’s ("Son contradicting the factual assertions contained in the affidavit of plaintiff Howard G. Daley to the effect that the son was authorized to act as his mother’s agent in the transaction in question. Under the circumstances, defendant’s motion for summary judgment should not have been granted. Gulotta, P. J., Hopkins and Shapiro, JJ., concur; Martuscello and Latham, JJ., dissent and vote to affirm.