I find that the terms of the contract are ambiguous, for they simultaneously can be read as granting a ‘ ‘ regular ’ ’ pension computed by multiplying 1% of the average monthly pay during the last 10 years of employment by either (1) the entire number of the employee’s years of service (section 9 of the contract) or (2) the “ twenty-five (25) years of continuous service for the purpose of the regular pension” (section 8 of the contract). Moreover, the contract as interpreted by the plaintiff results in a limit of 25 years of service as a basis for the pension granted to present employees of Queens who had been previously employed by predecessor companies of Queens, but unlimited as to years of service of employees continuously employed by Queens — a conclusion which Queens contends was not the intention of itself and the union in making the contract. The record further indicates that the union and Queens in other instances of retirement have interpreted the contract to limit the years of eligible service to 25 years and that this interpretation was not protested by either the employees or the union.
As a third-party beneficiary, the plaintiff may enforce the contract (Gulla v. Barton, 164 App. Div. 293; cf. Cox, Rights under a Labor Agreement, 69 Harv. L. Rev. 601, 646), but the contract cannot be stretched by the plaintiff as a third-party beneficiary to include benefits not contemplated by the parties (2 Williston, Contracts [3d ed.], § 394, p. 1064). When a contract is ambiguous, then one interpretation cannot be adopted over another, alike reasonable, as a matter of law; “ all the circumstances must be considered which go to make clear the sense of the words ” (9 Wigmore, Evidence [3d ed.], § 2470, p. 227), subject to the determination of the trier of the facts (Lamb v. Norcross Bros. Co., 208 N. Y, 427, 431).
*75The acts of the parties under the contract are also admissible to show intent (Brooklyn Public Lib. v. City of New York, 250 N. Y. 495, 501; St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30, 35-37), and this is particularly applicable to an employee’s rights under a labor agreement (Nelson v. General Elec. Co., 145 A. 2d 576, 579-580 [Mun. Ct. App., D. C.]).
Hence, triable issues arise which preclude the granting of summary judgment for either the plaintiff or Queens. Therefore, the order should be reversed and the motion denied.
Munder and Benjamin, JJ., concur with Shapiro, J.; Hopkins, Acting P. J., dissents and votes to reverse the order and to deny the motion, in an opinion, in which Brennan, J., concurs.
Order of the Supreme Court, Queens County, dated March 29, 1971, affirmed, without costs.