
    New York Bituminous Products Corp., Respondent, v. Town of Goshen, Appellant, et al., Defendant.
   In an action to recover the balance allegedly owing on a sale of road tar, defendant Town of Goshen appeals from a judgment of the Supreme Court, Orange County, entered July 23, 1965 in plaintiff’s favor against it in accordance with an order of said court, dated July 16, 1965, which granted plaintiff’s motion for summary judgment against said defendant. Judgment and order reversed, without costs, and motion for summary judgment denied. In our opinion, issues of fact are presented as to whether the order for the tar, given by the town’s Superintendent of Highways (the eodefendant), was invalid in that it would result in an expenditure of money in excess of budget appropriations; whether the tar was ordered as the result of an emergency; and whether, under all of the facts presented, the doctrine of unjust enrichment should be applied.

Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.  