(dissenting). It was patently impractical to continue with the production of “ My Fair Lady ” at the defendants’ theatre unless the defendants were required to honor the “twofers” until the oral arrangement therefor was mutually terminated. Plaintiff’s Exhibit 4 shows the receipts resulting from “ twofers ” for the period February 11 to September 28, 1961 totaled $318,295.09 and plaintiff’s Exhibit No. 6 sets forth a net profit of $117,927 for the year 1961. The conclusion is irresistible that without the aid of “ twofers ” the show would have sustained a substantial loss during 1961. In addition, the said arrangement enabled plaintiff to comply with the stop clause which provided for termination of the lease by either party in the event gross receipts fell below $35,000 for two consecutive weeks.
The trial court found the oral arrangement for the ‘ ‘ twofers ’ ’ to be temporary and that it was duly terminated in September, 1961. This critical finding is grounded solely on the resolution of an issue of credibility and should not be disturbed by this court which has not had the advantage of hearing and observing *296the witnesses as to the oral arrangement. (Amend v. Hurley, 293 N. Y. 587, 594; Smith v. Smith, 273 N. Y. 380, 383; York Mtge. Corp. v. Clotar Constr. Corp., 254 N. Y. 128, 134; Boyd v. Boyd, 252 N. Y. 422, 429.)
Accordingly, I dissent and vote to affirm the judgment.
Babin, J. P., and Steuer, J., concur with Eager, J.; McNally, J., dissents in opinion in which Stevens, J., concurs.
Judgment reversed with judgment for plaintiff as directed in opinion hy Eager, J., with costs to appellant. Findings of fact contained in the decision at Special Term which may he inconsistent with the opinion by Eager, J., are reversed and new findings of fact are made as indicated in said opinion. Settle order on notice.