Ordered that the judgment is reversed, with costs, and the complaint is reinstated.
Where there are conflicting factual allegations concerning whether a deed was delivered and accepted with the intent to convey an interest in property, the questions raised should be resolved by a jury ( see, Ten Eyck v. Whitbeck, 156 N.Y. 341, 352; 4 Warren's Weed, New York Real Property, Delivery, § 2 [4th ed]; 1 Rasch, New York Law Practice of Real Property § 24:162, at 879 [2d ed]). Because the allegations of the parties create a question of fact as to whether the deed was delivered and accepted, the court erred in dismissing the complaint.
Miller, J. P., Ritter, Pizzuto and Altman, JJ., concur.