
    Fredburn Construction Corporation, Appellant, v. City of New York, Respondent.
    Argued April 10, 1939;
    decided May 23, 1939.
    
      
      Edwin Hort and Millard H. Ellison for appellant.
    
      William C. Chanler, Corporation Counsel (Alvin McKinley Sylvester and Paxton Blair of counsel), for respondent.
    The claim that the payment of November 6, 1931, was not intended by the parties to be the final payment under the contract is sham. The real issue was whether the plaintiff could assert the rights it attempted to reserve at the time it accepted the final payment under the contract. (Richard v. Credit Suisse, 242 N. Y. 346; Strasburger v. Rosenheim, 234 App. Div. 544; Dodwell & Co. v. Silverman, 234 App. Div. 362; Alexander Hamilton Institute v. Huston, 254 App. Div. 729; Hanna v. Mitchell, 202 App. Div. 504; 235 N. Y. 534; Larme Estates, Inc., v. Omnichrome Corp., 275 N. Y. 426; Allen v. City of Oneida, 210 N. Y. 496; 
      MacArthur Bros. Co. v. City of New York, 177 App. Div. 725; 224 N. Y. 629; Cauldwell-Wingate Co. v. City of New York, 269 N. Y. 539.)
   Per Curiam.

We are of the opinion that upon the motion made by defendant for summary judgment under rule 113 of the Rules of Civil Practice, a substantial question of fact was presented which entitled the plaintiff to a trial of the issue as to whether the so-called last payment voucher was intended and understood to be a last payment voucher and whether plaintiff was barred by accepting the so-called last payment from recovering any further payments from the defendant.

The judgments should be reversed and the motion denied, with costs to the appellant to abide the event.

Lehman, Httbbs, Loughban, Finch and Rippey, JJ., concur; O’Bbien, J., dissents; Cbane, Ch. J., taking no part.

Judgments reversed, etc.  