(dissenting). I dissent and vote to affirm the order appealed from and answer the question certified in the affirmative, for the reasons stated by Mr. Justice Louis J. Capozzoli in his concurring opinion at the Appellate Division (58 AD2d 347, 358). There is nothing in the memoranda of agreement between the parties indicative of any intent to distinguish between the various types of pension plans. Thus, at this stage in the proceedings, the legal conclusion that there was such an intent is based on sheer speculation. Indeed, the letters of May 10 and May 13, 1968 represent a perfectly valid agreement. To deprive the appellant pensioners of their day in court, based upon this record, is unwarranted.
*897Order reversed, etc.