I dissent and vote to affirm.
We are in agreement that there is no triable issue as to the breach of the contract. (Fruhauf v. Bendheim, 127 N. Y. 587.) The sole issue is the proper measure of damages. The defendant-appellant knowingly entered into the contract for the sale of the real property with the knowledge that it could not perform without the consent of the lessees having the options of first refusal. Plaintiff, therefore, may recover for the loss of its bargain. (Pumpelly v. Phelps, 40 N. Y. 59; Mack v. Patchin, 42 N. Y. 167; Bulkley v. Rouken Glen, *932Inc., 222 App. Div. 670, affd. 248 N. Y. 647.) Assuming plaintiff’s knowledge of the terms of the leases, it is irrelevant on the measure of damages. (Marsh v. Johnston, 125 App. Div. 697.) Margraf v. Muir (57 N. Y. 155) denied the vendee the loss of his bargain because the vendor was without knowledge of an outstanding tax lien and the inadequacy of the price in respect of a Sale requiring court approval because of the interest of minor children in the property. In Margraf the vendor’s lack of knowledge demonstrated her good faith, which served to preclude recovery by the vendee of the loss of his bargain; the vendee’s knowledge of the facts unknown to the vendor emphasized the inequity of his claim.
Moreover, no facts are alleged evidencing knowledge of the tenants’ options on the part of the plaintiff. The affidavit of defendant-appellant’s president stating, in part “ to my knowledge copies of the actual leases were in the hands of the plaintiff prior to the execution of the contract and it was fully aware of the existence of such clauses in the leases, or, if not, was on notice of the terms contained in them ” is conelusory. In any event, it is not claimed that plaintiff was apprised at the time of contract of the facts on which defendant-appellant relied in assuming the tenants would not exercise the options.
Botein, P. J., Breitel, Valente and Stevens, JJ., concur in Per Curiam opinion; McNally, J., dissents and votes to affirm in opinion.
Order entered on April 26, I960, granting plaintiff’s motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice as to defendant Gilbert of Ithaca, Inc., and directing an assessment of damages before a Referee, reversed on the law and the motion denied, with costs to abide the event.