The factual background of this appeal presents, almost paradoxically, a complicated picture, actually capable of easy solution. It is complicated because, in the dealings found here, no attempt was made by either party to distinguish between the individual defendant, and a corporation bearing his name, and also some third entity which, if it exists at all, is either an assumed trade name or a partnership. Indeed, an uncertain plaintiff has sued both the corporation and the individual. To add to the complication, the individual asserts that a paper he signed, in what appears to be his capacity as a corporate officer, was not known to him to be a contract, nor did he possess authority to commit the corporation. Plaintiff has candidly confessed in an affidavit of its executive vice-president that it does not know which of the two defendants sued is liable for the debt.* Such a situation would seem to call for immediate discovery to establish which defendant is liable, which may be ascertained on discovery in half a dozen questions. Instead, plaintiff has moved for summary judgment against both defendants indiscriminately, and the majority would grant the motion — also indiscriminately.
As far back as 1922 in the first case then coming to the attention of this court after enactment of the then new summary judgment rule, 113 of the Rules of Civil Practice, we stated: “The court is not authorized to try the issue, but is to determine whether there is an issue to be tried.” (Dwan v Massarene, 199 App Div 872, 879; see, also, Shientag, Summary Judgment, ch 10.) This has been the rule ever since, repeated and refined again and again. (See, e.g., Esteve v Abad, 271 App Div 725; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Marshall, Bratter, Greene, Allison & Tucker v Mechner, 53 AD2d 537 [No. *42313].) What has happened here, however, is that the court has endeavored to decide the issue of fact as to which defendant is liable by the simple process of ignoring it and holding by some form of telepathy that both are jointly and indiscriminately liable.
There is an issue of fact inherent in the moving papers themselves: the admission of doubt as to which defendant is liable. To that extent those papers are defective, not stating a clear case against either defendant, and summary judgment should therefore have been denied. The majority here sees no problem in this, ignoring the defect, and granting relief despite an unascertained necessary predicate to recovery, i.e., who is responsible for the debt?
The court, in completely ignoring the existence of this issue, has remanded it for assessment summarily as though the assertion of nonliability on the part of a defendant is ipso facto a species of fraud. The issue is not so lightly to be brushed aside. In the circumstances, the question of the capacity in which one individual has dealt with another and signed a document may only be resolved by parol evidence. (See Sullivan County Wholesalers v Sullivan County Dorms, 59 AD2d 628; Barden & Robeson Corp. v Ferrusi, 52 AD2d 1061; Citibank Eastern, N.A. v Minbiole, 50 AD2d 1052, 1053.)
Thus the court is not actually deciding the issue at all. It simply ignores it. It is as if it is saying: “Let the defendants worry; they know who is liable and whoever is will pay the judgment.”
The decision of Special Term should be affirmed, and the parties directed to proceed to discovery by plaintiff of defendants to ascertain once and for all, before fixing liability, what party is actually liable.
Kupferman and Sullivan, JJ., concur with Murphy, P. J.; Markewich and Lynch, JJ., dissent in an opinion by Markewich, J.
Order, Supreme Court, New York County, entered on November 19,1980, reversed, on the law, partial summary judgment granted on the first and second causes, and the *424matter remanded for an assessment of damages. Appellant shall recover of respondents $75 costs and disbursements of this appeal.
“Plaintiff does not know which defendant is liable on the agreement, but submits that defendants cannot claim that neither is liable.” This presents a new concept: summary judgment may be granted while an open factual question is left hanging in the air.