Appeal (1) from an order of the Supreme Court at Special Term, entered June 28, 1960, which denied a motion by appellant for summary judgment and granted a cross motion by respondents for summary judgment, and award a sum of money to respondents and (2) from the judgment entered thereon.
Memorandum by the court.Order and judgment (one paper) modified on the law and on the facts to the extent of deleting therefrom the second, third and fourth decretal paragraphs and denying the cross motion for summary judgment, with $10 costs, and otherwise affirmed, with costs to abide the event. It is the contention of the appellant that the three documents comprising the agreement as to fees spell out a contingent arrangement only. It is urged that whatever obligation arose with respect to the payment of fees was not absolute, but was contingent upon rent being collected. Furthermore, it is the appellant’s position that the acceleration provision upon a sale of the property referred only to a sale of the premises during an actual tenancy. The respondents, on the other hand, take the position that there was nothing contingent with respect to the obligation to pay the fees they claim they earned; thát while such fees were to be paid out of rents collected, the amount due was absolute and the balance of the full amount above what was received from rent collections was to be paid upon a sale of the property no matter when such sale took place. The issues thus raised cannot be resolved through an examination of the documents alone nor can • it be said that the affidavits of either side establish the position of either party so clearly that we can say that there is no issue to be tried. While the documents provide for the acceleration of payment of “ the *599remaining sums payable ” upon a sale of the property, they are silent as to whether that provision was to become effective regardless of whether there was a lease and a paying tenant in existence at the time of the sale. The property having been sold at a time when there was no tenant in the premises and after it had been untenanted for a period of about two years and before January 31, 1965 —the termination date of the lease negotiated by the respondents — it cannot be determined from the documents alone what the rights of the respective parties are. Accordingly, it would be best, and indeed necessary, to have testimony taken to enable the court to make a finding with respect to the intention of the parties.