I concur insofar as the majority is reversing the grant of summary judgment to the defendants, but otherwise dissent and would deny summary judgment to the plaintiff as well as to the defendants. In my opinion, there is a fact issue to be resolved as to the intention of the parties in respect to paragraph 6 of the contract, i.e., whether it was intended as a representation upon which the plaintiff might rely that the second-floor space was available for residential use.
I distinguish Hammer v. Michael (243 N. Y. 445) because there the sale was of a three-family house capable of yielding $197.50 a month. A tenement-house violation that had to be complied with before the closing of title required the seller to obtain a certificate from the municipal tenement house department approving the use and maintenance of the premises as a tenement house. The seller removed the violation by eliminating one of the tenancies and restoring the building to a two-family house. The Court of Appeals noted that the trial court had made a finding, which was not disturbed by this Appellate Division, that this necessarily reduced the income by *48$690 a year and, because of that, held that this act of the seller constituted an evasion of the contract, not its fulfillment. In our case the second-floor area is not rendered unproductive. It can be rented for office use and we have no evidence before us that it will not rent for as much as when it was rented for residential use.
Christ and Benjamin, JJ., concur with Shapiro, J.; Munder, J., concurs in part and dissents in part in an opinion in which Martuscello, Acting P. J., concurs.
Order-judgment of the Supreme Court, Kings County, dated November 1, 1973, reversed, on the law, with costs, plaintiff’s motion granted and defendants ’ cross motion denied.