
    Flexsleev, Inc., Respondent, v. Dynaflex Corporation, Appellant.
   Order and judgment granting 'plaintiff summary judgment in action for royalties under license agreement unanimously affirmed, with costs to plaintiff-respondent. The court is satisfied that on any version of the language of the agreement the minimum royalties for the first three years of the term were not to be offset by any credits against such minima because of deficiencies in royalties actually earned. On this view plaintiff was entitled to recover the accrued minimum royalties for which this action was brought. There is nothing in the agreement, although that may have been the unmanifested intention, that justifies a finding that any credits are to be applied only to “ surplus ” actually earned royalties. Since there is no “surplus” that question need not be reached on this motion or in this action. Notably, the agreement expressly provides -that the credits are to be applied against minimum royalties. 'The question is: the minima for which annual periods? Except for the fact that both parties agree that the credits were “to provide relief” for the first three years of the term, one could have concluded, in accordance with the literal language of the agreement, that the credits were to be applied only to the “ensuing” period, namely, the fourth and fifth years of the term. Since the agreement is so ambiguous on its face, should the question become material in the future, there would be, if the record were no different, a question of fact as to what the parties intended. It suffices for the present disposition, however, that plaintiff is entitled to the stipulated minimum royalties for the first three years without offset. Concur — Breitel, J. P., M. M. Frank, Valente, McNally and Stevens, JJ.  