I dissent insofar as summary judgment is granted dismissing the plaintiff’s complaint. There is at least an “ arguable ” issue, as Special Term found, concerning the absence of consideration pertaining to the amendatory agreement of July, 1959 which purported to forgive the employers of their obligation to make stated pension fund contributions pursuant to the collective bargaining agreement of August 1,1957. Those affected by the amendment, of course, were the employees as to whom contributions of 14% cents an hour were to be paid into the pension fund. The question is whether their union might destroy those benefits. That the fund involved here was established to provide employee benefits, that it actually came into existence and was maintained for many months, was the holding of Justice Staley wherein the plaintiff Superintendent was found to have exclusive jurisdiction and directed to proceed with the liquidation of the fund (Matter of Dairy Transp. Assn. v. Decker, 42 Misc 2d 734 *336[Sup. Ct., Albany County, 1963]). Cognizance of the interests of the employees, as well as the orderly administration of the defunct pension fund, requires that the defendants-appellants prove their defense at trial. The order appealed from insofar as it denied defendants-appellants ’ motion for summary judgment dismissing the complaint should be affirmed.
Stevens, P. J., Eager, MoGivern and Steuer, JJ., concur in Per Curiam opinion; Tilzer, J., dissents in opinion.
Order entered January 13, 1969, reversed, on the law, without costs to any party as against the other, defendants-appellants’ motion for summary judgment dismissing plaintiff’s complaint granted and defendants’ counterclaim dismissed, and the Clerk is directed to enter judgment in favor of defendants-appellants dismissing plaintiff’s complaint and dismissing defendants’ counterclaim.