In an action to recover damages for defendant's failure to perform under a memorandum agreement to sell real property partly owned by defendant and partly owned by one Florence Gold, not a party to the agreement, defendant appeals from an order granting plaintiff's motion for summary judgment striking out the answer and directing an assessment of damages. Order reversed, without costs, and motion denied, without costs. Defendant's contention is that the agreement to sell should not be binding unless and until a formal contract should be entered into between plaintiff, defendant, and said Florence Gold. Such contention raises a triable issue of fact. ( N.E.D. Holding Co. v. McKinley, 246 N.Y. 40; Polucek v. Jahoda, 203 App. Div. 38.) Nolan, P.J., Wenzel, MacCrate, Beldock and Murphy, JJ., concur.