Appeal from an order of the Supreme Court at Special Term, entered August 23, 1973 in Ulster County, which denied motions to dismiss the complaint. In an action for breach of warranty, fraud and conspiracy, defendants Eastland and Featherstone appeal from so much of an order at Special Term that treated their motion to dismiss the complaint as a motion for summary judgment and denied same. Since evidentiary material was submitted by defendants and other moving parties, this procedure was proper. (CPLR 3211, subd. [c]; 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3211.50.) The trial court found questions of fact exist as to the legal relationship between these defendants who are a dealer in modular homes, and the owner of lands under development as a modular home community respectively. A motion for summary judgment searches the record, and from a reading of all the moving papers, it is clear a question of fact does exist as to whether defendant Featherstone was at least an agent of defendant Eastland (4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3211.48). This issue and others arising therefrom can best be determined upon a trial. Order affirmed, without costs. Staley, Jr., J.P., Cooke, Sweeney, Kane and Main, JJ., concur.