(dissenting). The order granting summary judgment to defendants and dismissing the complaint under rule 113 except as to that portion of the complaint as is based upon a written agreement of April 14,1948, which contains a promise on the part of defendants to pay for furnishings in the lobby, should be affirmed.
The proof submitted establishes by documentary evidence that there was a written agreement, known as: ‘' Sellers ’ Agreement With Purchasers ” setting forth the obligations of the parties. There is conclusive proof that defendants duly performed that agreement in accordance with its terms; and that appellant executed and delivered to defendants a general release discharging each of them from the claims mentioned in the complaint.
Plaintiff’s cause of action is based upon that “ Sellers’ Agreement With iffirchasers.” Paragraph 9 of the agreement provided that the building was to be deemed completed when these three conditions were met: (1) issuance of certificate of occupancy; (2) final payment on a mortgage loan; and (3) permanent first mortgage to be assigned to the Mutual Benefit Life Insurance Company; that when these three conditions were complied with it was to be “ deemed and considered by all parties hereto as conclusive proof that the building has been fully completed in accordance with the provisions of this agreement ’ ’. It is conceded that these conditions were met. Work done by defendants after the closing related only to additional services and materials required by the mortgagee and defendants’ obligation to perform the additional work, as so required, was intended to survive the closing.
The alleged oral promises made by defendants after the closing to do further work and to furnish additional equipment are unenforeible for lack of consideration if viewed as independent agreements. If they are considered as modifying the provisions of the sellers’ agreement with purchasers, they are *200unenforcible because the agreement itself specifically provided that no change or modification thereof was to be binding upon the sellers unless in writing, signed by the defendants or their duly authorized agent.
In the circumstances, summary judgment dismissing the complaint except as to the lobby furnishings was proper, and the order should in all respects be affirmed.
Peck, P. J., Dore and Breitel, JJ., concur in Per Curiam opinion; Cohn, J., dissents and votes to affirm, in opinion, in which G-lennon, J., concurs.
Judgment and order reversed, with costs to the appellant and the motion for summary judgment denied. [See post, p. 836.]