
    Ithaca Gun Co., Inc., Respondent, v. A. W. Serio Tool Co., Inc., Appellant.
   Appeal by the defendant from an order of the Supreme Court denying its motion for summary judgment. It appears from the moving papers that plaintiff and defendant entered into a contract in October of 1954 whereby the defendant was to furnish to plaintiff certain goods for $5,133.72. A short time thereafter such sum was paid in full to the defendant. In March of 1957 the parties had a general discussion over other contracts between them, and at the conclusion of such discussion plaintiff executed a general release to the defendant, which is pleaded as an affirmative defense in the answer. There was no dispute existing or discussed at that time about the 1954 contract mentioned above. It appears that thereafter and in December of 1957 plaintiff requested delivery of the merchandise covered by the 1954 contract, and it is claimed that a partial delivery of merchandise amounting to $2,898.20 was made at that time. Early in 1958 plaintiff demanded delivery of the balance of the merchandise, and when it was not made, brought this action to recover the balance of the money paid defendant. Defendant urges that since the complaint alleges only the contract of 1954, and that the release was executed in 1957, the release is an absolute bar, at least without an amendment of the complaint to allege some cause of action which arose after the execution of the release. Plaintiff claims that although the contract was made in 1954 its claim did not ripen or become a cause of action until after the plaintiff demanded delivery of the merchandise and when delivery was not made demanded the return of the balance of the purchase price. Of course the plaintiff is deemed to have controverted the defense set up in the defendant’s answer, and is entitled to show anything that it can in voidance of the release. The moving papers demonstrate a question of fact as to the complete effectiveness and finality of the release. Order unanimously affirmed, with $1U costs. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.  