(dissenting). I would affirm.
Plaintiff Stahl Equities Corp. is the landlord of 277 Park Avenue, Manhattan, which is a 52-story office building. In 1964, plaintiff entered into a contract with defendant Prudential Building Maintenance Corp., by which defendant provided the subject building with cleaning, maintenance and janitorial services above the fifth floor. For nine years the defendant performed these services, under the supervision of the plaintiff’s on-premises managing agent, Cross & Brown. It is undisputed that at no time, during the life of the contract did the plaintiff complain about defendant’s performance. The written agreement was negotiated at arm’s length by experienced businessmen. In 1973 the defendant exercised its right to give notice of termination. Subsequent to termination, plaintiff commenced the instant action against defendant for: (1) breach of contract and (2) fraud and negligent misrepresentation. In its answer, defendant counterclaimed for breach of contract and account stated.
After a nonjury trial, Trial Term dismissed plaintiff’s claims against defendant and found in favor of the defendant on its counterclaims, which were based upon unpaid invoices for services rendered.
The key issue in this case is the intention of the parties, as expressed in their more than 30-page agreement, which was drafted by the plaintiff’s very experienced real estate attorney. The determination of that intent depends upon the credibility of the witnesses. My review of this record leads me to conclude that “[i]n a case so close as this, let the court of first instance decide. Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In *232doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth” (Boyd v Boyd, 252 NY 422, 429).
It is difficult for this writer to perceive that it took the plaintiff, who is a very knowledgeable real estate operator, nine years to realize that it was a victim of overcharging.
This writer further notes that plaintiff did not institute this action until after the defendant canceled the contract, as was its right, and demanded payment in the amount of approximately $300,000 for services rendered to plaintiff at another building located at 22 East 40th Street.
Sandler and Alexander, JJ., concur with Asch, J.; Kupferman, J. P., dissents in part in an opinion; Ross, J., dissents in a separate opinion.
Judgment, Supreme Court, New York County, entered on December 17, 1982, reversed, on the law and the facts, to the extent of striking the dismissal of plaintiff’s complaint, and the grant of judgment to defendant upon its counterclaims, reinstating plaintiff’s causes of action for fraud in the inducement and breach of contract for payment of incorrect escalation charges, and remanding for a new trial, with costs and disbursements to abide the event.