
    Felice Cerulli, Respondent, v. J. F. I. Construction Co., Inc., and Others, Defendants, and Thomas J. Murphy, Appellant.
   Order granting plaintiff’s motion for summary judgment and striking out answer interposed by defendant Thomas J. Murphy, and judgment entered upon such order, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. We are of opinion that there is an issue of fact which should be tried and not determined upon affidavits under rule 113 of the Rules of Civil Practice. Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ., concur.  