
    Beacon Brick Corporation, Respondent, v. Ace Builders Supply Co., Inc., Appellant.
   Order and judgment appealed from unanimously modified, on the law, to deny summary judgment as to the second cause of action and so much of the third cause as is appealed from. As so modified the judgment is otherwise affirmed, without costs or disbursements to either party. This action is to recover the agreed price and reasonable value of certain brick supplied by plaintiff to defendant. The brick involved in the second and third causes was used in the Brightwater project. The mason contractor who purchased the brick from defendant has instituted suit for damages against plaintiff and defendant alleging such merchandise was defective. The contractor also submitted an affidavit in opposition to plaintiff’s motion as to the second and third causes similarly alleging the bricks were defective. While it is preferable for defendant, the party sued directly by plaintiff, to have submitted an affidavit, in the view taken here the affidavit of the mason contractor, together with the affirmative defense of defective material allegedly supplied by plaintiff, sufficiently raises a fact issue warranting denial of the motion as to the second and third causes as appealed from. As to the second cause, which includes a delivery charge in addition to the agreed price, there may be a question of fact if such charge is correct. Concur — Stevens, J. P., Steuer, Capozzoli, Rabin and McNally, JJ.  