Beck v. New York News, Inc.

Murphy, P. J., and Alexander, J.,

dissent in a memorandum by Alexander, J., as follows: I respectfully dissent from the modification of the order below and would affirm that order in its entirety. As pointed out by the Judge at Special Term: “It is difficult to understand how the letter of credit is to be explained except as an apparently substantial partial performance of the oral agreement. The significance of that act creates a fact question of major proportion.” In addition, it is alleged by the plaintiffs, and in my view not satisfactorily denied by the defendant News, that it was represented to them “that after the lease terms had been approved by the Tribune officers in Chicago, the News would stand behind its agreement and would refuse to entertain offers for the space even if those offers were for substantially more rent than had been agreed upon with us.” If such representations were made, and there was reliance thereon, issues which cannot be determined at this stage of the proceedings, plaintiffs might indeed be entitled to the intervention of a court of equity. (See Club Chain of Manhattan v Christopher & Seventh Gourmet, 74 AD2d 277, app dsmd 53 NY2d 703.)