
    David Schwartz, Respondent, v. New England Mutual Life Insurance Company of Boston et al., Appellants.
   Determination of the Appellate Term affirming an order of the Civil Court of the City of New York, County of New York, granting summary judgment to plaintiff and directing an assessment of damages and denying summary judgment to defendants, unanimously modified, on the law, the facts and in the exercise of discretion, so as to deny summary judgment to plaintiff and vacate the judgment entered and, as so modified, the determination is affirmed, with costs to appellants. Plaintiff sues his employers for retirement benefits and an insurance company alleged to have contracted to pay such benefits. As to the latter, there is no proof that this defendant ever contracted to make such payments, and the proof is expressly to the contrary. On any 'liability other than express contract, the proof is in sharp dispute. As to the other defendants, there is no issue but that some payment for retirement benefits is due. No purpose is served by granting summary judgment as the proof on the assessment would be identical with the proof on the trial. Concur — Botein, P. J., Valente, Eager, Steuer and Witmer, JJ.  