
    Richard King, Respondent, v. Claire King, Appellant.
   In an action based upon an agreement of assignment of a portion of the proceeds of the settlement of a negligence action, the defendant appeals from an order of the Supreme Court, Nassau County, entered November 21, 1963, which granted plaintiff’s motion: (a) to amend the complaint by increasing the ad damnum to $2,453.74; and (to) for summary judgment in said amount. Order modified: (a) by striking out the second and third ordering paragraphs granting summary judgment; and (b) by substituting therefor a provision denying plaintiff’s motion insofar as it seeks summary judgment. As so modified, order affirmed, with $10 costs and disbursements to defendant. In our opinion, the agreement sued upon is ambiguous in that, without resort to parol evidence, it may not be determined: (1) whether the parties’ intention was that plaintiff shall be reimbursed out of defendant’s recovery for his payments on account of defendant’s medical expenses, regardless of any collateral reimbursement he might also receive through medical insurance or other sources; or (2) whether their intention was that he shall be reimbursed simply for his net “ out of pocket ” expenses. Under the circumstances, summary judgment may not be granted (cf. O’Connor-Sullivan v. Otto, 283 App. Div. 269, 271; Utica Carting, Stor. & Contr. Co. v. World Fire & Mar. Ins. Co., 277 App. Div. 483, 488). Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.  