(dissenting). Implicit in the so-called “ exculpatory provision from liability ” is the undertaking that the defendant, the sellers, would not act arbitrarily, capriciously, fraudulently or in bad faith. The court wherever possible will endeavor to avoid a construction which would result in placing one party to a contract at the mercy of another. Notwithstanding the letter of December 20, 1949, and the circumstances *23surrounding it, enough is set forth in the opposing affidavits to raise triable issues of fact and of good faith. The order denying defendant’s motion for summary judgment dismissing the complaint should be affirmed, with $20 costs and disbursements to appellant.
Peck, P. J., and Dore, J., concur with Van Voori-iis, J.; Shientao, J., dissents in opinion, in which Cohn, J., concurs.
Order reversed, with $20 costs and disbursements to appellant and defendant’s motion for summary judgment dismissing the complaint granted, with costs to the defendant. Settle order on notice.