While I concur in the analysis, I believe that the city is collaterally estopped to deny its obligation by virtue of its failure to appeal from the determination in Empire Elec. Contrs. v Fabber (71 Misc 2d 167). (Cf. Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, affg 52 AD2d 43.)
Birns and Lane, JJ., concur with Silverman, J., in first above-entitled action; Kupferman, J. P., dissents in part in an opinion.
Kupferman, J. P., Birns and Lane, JJ., concur in second above-entitled action.
Order in first above-entitled action, Supreme Court, New York County, entered on December 17, 1976, modified, on the law, to the extent that defendant city’s motion to dismiss the complaint is granted and the complaint is dismissed insofar as it relates to relief other than the return of the New York City bonds in the face amount of $220,000, and the order is affirmed insofar as it directs the city to return said bonds to the plaintiff-respondent, without costs and without disbursements.
Order in second above-entitled action, Supreme Court, Bronx County, entered on March 16, 1976, unanimously reversed, on the law, so far as appealed from, and the motion granted to the extent of dismissing the first, second, third and ninth causes of action in the amended complaint and directing the severance thereof and final judgment thereon, and dismissing the fourth, fifth and sixth causes of action in the amended complaint without prejudice to an appropriate application to Special Term to plead again with respect to said causes. Appellant shall recover of respondent $60 costs and disbursements of this appeal.