
    Sidney Gould, Respondent, v. Lester Laufbahn et al., Appellants.
    Argued April 24, 1972;
    decided May 5, 1972.
    
      
      Norman Solovay and Patrich A. Lyons for appellants.
    
      Solomon Granett and Michael Halperin for respondent.
   no opinion.

Concur: Chief Judge Fuld and Judges Burke, Bergan and Breitel.

Judges Scileppi, Jasen and Gibson dissent and vote to reverse in the following memorandum: Contrary to the conclusions reached in the courts below, we find essentially factual the defendants’ averments as to an inventory deficiency, and those as to the disparate and inconsistent operating statements for the two six-month periods in 1969, coupled with evidence of the accountant’s inculpatory explanation and with defendants’ assertions respecting plaintiff’s retention of control of the company’s financial affairs and its accounting practices. Plaintiff enters categorical denials and characterizes defendants’ contentions as sham and frivolous but does not counter defendants’ more specific statements with any factual contradiction. The motion for summary judgment should therefore have been denied.  