I concur in the majority vote for affirmance, resting the result however solely on plaintiff’s failure to demonstrate damage. I find it entirely unnecessary to reach the issue of merger of estates.
Birns, J. P., and Sullivan, J., concur with Fein, J.; Markewich and Lupiano, JJ., concur in separate opinions.
Order, Supreme Court, New York County, entered on January 24, 1979, affirmed. Respondent shall recover of appellant $75 costs and disbursements of this appeal.