We disagree and would affirm for the reasons stated by the Trial Justice. In our view the alternatives to compliance offered by defendant, after the restrictions were imposed by the government of Japan on yen speculations, were not commercially reasonable substitutes (Uniform Commercial Code, § 2-614) and vitiated the provisions of paragraph "IV” of the contract which plaintiff had a right to enforce. The majority relies, in part, on plaintiff’s alleged "use” of the $68,490 unilaterally credited to its account by defendant on October 14, 1971. Such particular is significantly omitted from the parties’ stipulation of facts and its support in the record is insufficiently developed to warrant the drawing of any such conclusion.
Markewich, J. P., and Birns, J., concur with Silverman, J.; Murphy and Lane, JJ., dissent in an opinion by Murphy, J.
Judgment, Supreme Court, New York County, entered on October 14, 1975, reversed, on the law and on the facts, and vacated, and the complaint dismissed. Appellant shall recover of respondent $60 costs and disbursements of this appeal.