(dissenting). The last time this case was before us (79 AD2d 825) we remitted the matter for further development of the record upon the ground that “the record is incomplete with respect to the contract issue” (id., at p 826). In view of the parties’ decision to submit no further proof upon remittal, it necessarily follows that the record remains incomplete with respect to the contract issue, and since plaintiff has the burden of proof on that issue, his complaint should be dismissed. Accordingly, Trial Term’s judgment should be affirmed.