Order, Supreme Court, New York County, entered on May 5, 1975, denying defendant’s motion for summary judgment, unanimously affirmed. Respondent shall recover $60 costs and disbursements of this appeal from appellant. There are fact questions, including the status of Mrs. Wynn at various stages of the preparation, editing and publishing of the April, 1973 issue of the magazine Ingenue, and whether the preparation thereof was solely under defendant’s control. There are also triable issues as to whether Mrs. Wynn’s knowledge of the contents of the April edition should be imputed to plaintiff and as to whether plaintiff waived its claim for damages by closing the sale of the subject magazine. "A waiver, not express, found in the acts, conduct or language of a party, is rarely established as a matter of law rather than as a matter of fact.” (Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34, 37.) We agree with Special Term that the facts disclosed by this record mandate a *736plenary trial. Concur—Kupferman, J. P., Lupiano, Tilzer, Lane and Nunez, JJ.