Order, entered on February 24, 1960, granting plaintiff summary judgment, unanimously reversed, on the law, with $20 costs and disbursements to defendants-appellants, and the motion for summary judgment is denied, with $10 costs. It cannot be said, as a matter of law, that the driver, in the circumstances, operating a newly borrowed automobile was guilty of a lack of care in failing to have the brakes repaired immediately or in not desisting from further operation of such automobile. Consequently, there was an issue of fact which requires trial. Concur — Botein, P. J., Breitel, Valente, McNally and Noonan, JJ.