Patrolmen's Benevolent Ass'n of City of New York, Inc. v. City of New York

35 A.D.2d 697, 314 N.Y.S.2d 762, 75 L.R.R.M. (BNA) 2429, 1970 N.Y. App. Div. LEXIS 3777

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1970
• Status: Published

Opinion

Concur—Stevens, P. J., Markewich and Tilzer, JJ.; McNally and Steuer, JJ., dissent in the following memorandum by Steuer, J.: We would modify the order to the extent of reversing the grant of summary judgment and remand the matter for trial. A triable issue is presented as to whether a contract was in fact effected between the parties. Specifically, that question is whether the parties intended that the accord reached should constitute the agreement or whether it was to be subject to agreement on all terms to be set out in a formal document. There are facts presented which could induce resolution of this question either for or against the plaintiffs’ contentions. Nor do we believe that the city is estopped by the contentions of its counsel in another case. We do agree that the equitable counterclaim should not be entertained in the particular situation presented.