The opinion
Taylor, J. (dissenting).
The execution of the tri-party agreement, upon which the defendant relied to vitiate the employment contract, was neither mandated by the provisions of the so-called Wherry Act nor legally excusable because of the existence of a national emergency and no claim to the contrary is made. After the agreement was received by appellant, it communicated with an official of the Air Force who advised that the failure to establish the proposed new contractual relationship which, in large part, was designed to extinguish the need for plaintiff’s services would result in the withholding of the future payments provided by the subsisting mortgage, all of whose obligations concededly the Federal Government had assumed in part payment of the purchase price of the subject property. This is the basis assigned in justification of defendant’s consent to the modification of the original mortgage instrument with its fatal consequep.ee to plaintiff’s ability to perform the employment *117 contract. While the threatened governmental action foreboded probable payment enforcement difficulty, it was idle in the eye of the law. In my view the execution of the tendered agreement which must be regarded as voluntary in a legal sense is not the sort of incapacitation of plaintiff which the parties to the employment contract envisaged or the law sanctions as a ground for the exercise of the option to terminate it. (Matter of Casualty Co. of America [Bliss Co. Claim], 250 N. Y. 410 ; Patterson v. Meyerhofer, 204 N. Y. 96 ; Dolan v. Rodgers, 149 N. Y. 489 .)
Gibson and Reynolds, JJ., concur with Berg an, P. J.; Taylor., J., dissents and votes to affirm in memorandum.
Order and judgment reversed and defendant’s motion for summary judgment granted, with costs.