
    Ann Mendenhall, Respondent, v Marion Foods Corporation, Appellant.
   Order unanimously affirmed, with costs. Memorandum: Defendant appeals from a denial of its motion pursuant to CPLR 3211 (subd [a], par 1) to dismiss plaintiff’s second cause of action for breach of an implied warranty of fitness ón the ground that such warranty was effectively disclaimed by language contained in a contract between the parties. Although as a general rule the construction of a written instrument is a question of law for a court to determine (see Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247), this rule does not apply where the language used between the parties is either ambiguous or equivocal or where its interpretation depends upon the sense in which the words were used (see Lachs v Fidelity & Cas. Co. of N. Y., 306 NY 357, 364). In the instant case, while the disclaimer clause effectively excluded all implied warranties as to "quality, type and productiveness” of certain seed supplied to plaintiff by defendant, it is arguable whether this language extended to exclude an implied warranty of fitness for the purpose for which defendant knew the seed would be used. Accordingly, such a question is one of fact, the disposition of which should await a full trial on the merits. (Appeal from order of Cayuga Supreme Court — dismiss cause of action.) Present — Marsh, P. J., Moule, Cardamone, Simons and Goldman, JJ.  