(dissenting). I dissent on the ground that it cannot be determined on the documents alone that the buyer was to take title through the stock of the holding corporation free of the corporate debts. Either the judgment should be affirmed because of the tactical situation into which plaintiff put himself — in order to overcome the defense of the Statute of Frauds — or at the least, in the interests of equity, if the judgment is to be modified it should be vacated entirely, leave should be granted defendants to reinstate their answer, and a trial should be had. Upon such a trial the issue as to the intention of the parties with respect to the corporate debts may be determined, and then too the applicability of the Statute of Frauds could be likewise determined. Defendants withdrew their answer conditionally. We may not remove the condition and let the withdrawal stand. Nor may we rewrite the written documents of the parties to accord with what we think they should have written had they had the benefit of legal advice at the time.
Dore, J. P., Cohn, Callahan and Yan Yoorhis, JJ., concur in Per Ouriam opinion; Breitel, J., dissents in opinion.
Judgment modified by deleting therefrom the provision that plaintiff is obliged to accept the stock of 131 East 50th Street Corporation subject to the bona fide debts of the corporation on October 5, 1951, and, as so modified, affirmed, with costs to the appellant.
Settle order on notice.