(dissenting). Insofar as concerns the salaried employees’ retirement and profit sharing plan of this corporation, the Appellate Division seems to me to have been manifestly correct in holding the instrument to be severable as between the Transportation Division and Ticonium Division of the company. Each of these divisions included about half of the salaried members of the plan, each division operated in a different field, and when one of these divisions was discontinued as a result of the sale of the business which it comprised to another corporation, it was never the intention that the salaried employees in the other division which was not sold should absorb the benefits which belonged to those who went with the discontinued division into the employ of the purchasing corporation. It makes no *227difference that this was not a contributing plan; it had been put into effect as an inducement to these salaried employees to remain with the company, which they could no longer do after the company sold the division in whose business they were engaged. The instrument whereby this plan was declared by the corporation expressly provided that, in determining the amount of its contribution for the benefit of members respectively of the Ticonium Division or the Transportation Division, “ the two Divisions shall be considered as though they were separate companies, and the amount contributed on behalf of the Employees of each Division shall be limited to the amount which would be allowable if such Division were a separate company. ’ ’ Words could hardly make clearer that these divisions were to be treated under this instrument as separate corporations, with the same effect as though there were two separate declarations of trust applicable respectively to each division. The judgment appealed from should be affirmed, with costs.
Judges Dye, Burke and Scileppi concur with Judge Foster; Judge Van Voorhis dissents in an opinion in which Chief Judge Desmond and Judge Fuld concur.
Judgment reversed, etc.