I dissent and vote to affirm for the reasons stated in the opinion at the Appellate Division. I would merely add that unlike the case primarily relied upon by the appellant (Matter of Saffer, 39 Misc 2d 691, affd. 20 A D 2d 849), the parties to the antenuptial agreement in the instant case expressly provided that ‘ ‘ if such contemplated marriage shall not be solemnized * * * this agreement shall become wholly null and void
The marriage having been previously declared a nullity (Simms v. Simms, 31 Misc 2d 882, affd. 16 A D 2d 806), the sole question presented was whether the parties contemplated the solemnization of a lawful marriage or one that was merely religiously sanctioned. It is my opinion that the Appellate Division correctly determined the intention of the parties to condition the agreement on a valid marriage. Accordingly, the marriage having been declared a nullity, the condition precedent was not met by the religious ceremony since there was nothing to solemnize.
Chief Judge Fuld and Judges Burke, Jasen and Gibson concur with Judge Bergan; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judge Brietel concurs.
Order reversed, etc.