I dissent and vote to reverse the judgment appealed from and to award judgment to the plaintiffs. The retainer agreement is clear that in the event ‘ ‘ the Begistration Statement is made the .subject of a stop order or is withdrawn ” the defendant “ shall be obligated * * * for the total fee set forth herein” unless the stop order or the withdrawal was occasioned through the fault of the plaintiffs. The event contemplated occurred here. The registration statement was withdrawn because of a threatened stop order. And such withdrawal was not occasioned through any fault of the plaintiffs. The proof does not establish any such fault and, indeed, the defendants admit that there was no fault on the part of the plaintiffs that occasioned such withdrawal.
There is another provision in the same paragraph of the retainer agreement which has reference to the liability for the retainer fee. That provision applies only in the event of the inability of the plaintiffs to file the registration statement by reason of the fault of the defendant. We are not concerned with such contingency and it has no bearing on the determination of this case because, in fact, the registration statement was filed. Nor are we concerned with whether it was the underwriter or the defendants or both that caused the registration statement to be withdrawn or which of these was to blame for it. The retainer agreement contemplates a withdrawal and the only contingency that would nullify the right of the plaintiffs to their fee is if such withdrawal was through the fault of the plaintiffs. It is otherwise unqualified.
The provision in the underwriting agreement limiting the defendant’s expenses in the event of withdrawal by the underwriter does not in any way affect the plaintiffs’ right to the fee stipulated in the retainer agreement. The underwriting agreement—to which the plaintiffs were not parties—merely *263spells out the obligations of the defendant vis-a-vis the underwriter. If the underwriting agreement were in any wise to affect the explicit obligation of the defendant to the plaintiffs, the retainer agreement should have so expressly stated. It does not. Moreover, it should be noted that the underwriters only withdrew from the underwriting agreement after the defendants had withdrawn the registration statement.
The record is clear that the plaintiffs performed the services contemplated to be performed by them. If there were defects in the registration statement it was through no fault of theirs. On the contrary they raised objections to the changes made by defendant’s counsel, under whose supervision they were obliged to work. There is no reason why they are not entitled to their fee.
McNally, Stevens and Steuer, JJ., concur in Per Curiam opinion; Babin, J., dissents and votes to reverse in opinion in which Breitel, J. P., concurs.
Judgment affirmed, with costs to respondent.