(dissenting). In my opinion the learned court below made a proper determination of the motions for summary judgment, in granting defendant’s motion and denying that of the plaintiff.
I do not, however, agree with the contention of defendant that the contract to sell the transformers to it at the unit price of $0.419 was illegal and unenforcible because such a price was in excess of the maximum price regulation. It is true that in Toll v. Friedman (272 App. Div. 587) it was held that the termination of price controls did not purge a contract of illegality where the original contract was entered into in violation of Office of Price Administration’s price regulations. Here, however, Maximum Price Regulation No. 136 provided that a price higher than the maximum price could be charged, but that such higher price was thereafter subject to approval of the Office of Price Administration. The regulation declared (10 Federal Register 3200) that “ The manufacturer [seller] may not receive payment for the product at the higher price *597reported by Mm until the OPA approves that price in writing # # * M
The plaintiff-appellant argues that since the obtaining of the Office of Price Administration approval of the Mgher price became impossible when that agency’s existence was terminated, performance of that condition was excused. While impossibility of performance because of governmental action will ordinarily excuse nonperformance, it clearly appears in this case that it was plaintiff’s own unreasonable and deliberate procrastination over a period of eleven months which was the proximate cause of the failure to obtain approval of the higher price by the Office of Price Administration rather than the termination of the Office of Price Administration on November 10, 1946.
The papers show that witMn the requisite period of ten days after receipt of defendant’s purchase order, dated December 13, 1945, plaintiff filed a report with the Office of Price AdmiMstration pursuant to the latter’s regulation, in which it sought permission to charge the Mgher price. The Office of Price Administration thereupon requested plaintiff to submit to it additional data and actual production experience before giving its approval, but plaintiff utterly failed to furnish such data. In its letter to defendant, dated April 23,1947, plaintiff said: ‘ ‘ Due to the numerous changes in personnel, the lack of adequate help and also the necessity of devoting our energies to more pressing problems, the additional information asked for by the OP.A. was never furnished them * *
Thus it is manifest that plaintiff had a period of eleven months (December 13,1945, to November 10,1946) with in wMch to furnish the Office of Price Administration with the additional information requested. It purposely omitted to do so for the wholly unsatisfactory reasons stated in its above-quoted letter. It was obviously plaintiff’s inaction and not the Government’s termination of Office of Price Administration that prevented compliance with the condition of the contract that approval of the higher price be obtained before payment thereof could be lawfully received by it. By plaintiff’s conduct defendant lost the opportunity of a favorable ruling by the Office of Price AdmiMstration denying approval or fixing a lesser maximum price. Plaintiff, under the circumstances, should not be permitted to profit by its own deliberate loches.
The order appealed from should be affirmed.
Hammer, J., concurs with Eder, J.; Pécora, J., dissents in opirnon.
Order reversed, etc.