
    Harry Wheeler, Respondent, v. Rebecca Moscow, Defendant, and Anna Miller, Appellant.
   Order reversed on the law, with ten dollars costs and disbursements, and motion for summary judgment denied, with ten dollars costs, °n the ground that it appears that the contract upon which this suit was brought was for the installation of a heating plant in the premises of defendant Moscow, it being alleged that defendant Miller, as well as Moscow, was a party assenting to the contract. Defendant Miller in her answer denies that she made the contract and alleges that at the time she was unable to and incapable of making or consenting to the agreement. In her affidavit opposing the motion for summary judgment she says that she was suffering from such a continued state of intoxication, induced and procured in part at least by defendant Moscow, as to be in a condition without sufficient power of reason and understanding to appreciate the nature and legal consequences of her act; and that she was incapable of entering into a contract or giving legal assent thereto. She says further that the contract was procured By means of a conspiracy between plaintiff and defendant Moscow, whereby liability was to be fixed solely on herself. Issues of fact are presented and the granting of a summary judgment was not justified. (1 Williston Cont. § 259 ; 3 Page Cont. chap. 49, §§ 1647-1649; 36 A. L. R. pp. 619 et seq.; Prentice v. Achorn, 2 Paige Ch. 30; Van Wyck v. Brasher, 81 N. Y. 260; Kendall v. Ewert, 259 U. S. 139.) Lazansky, P. J., Young, Tompkins and Davis, JJ., concur; Scudder, J., not voting.  