
    In the Matter of Joseph Di Giacomo et al., Respondents, v City of New York et al., Appellants.
    Argued January 3, 1979;
    decided February 13, 1979
    
      APPEARANCES OF COUNSEL
    
      Allen G. Schwartz, Corporation Counsel (Irving Cohen and Leonard Koerner of counsel), for appellants.
    
      Richard A. Dienst for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the order and the judgment of Supreme Court, New York County, dismissing the petition reinstated on the dissenting opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (58 AD2d, at pp 358-362). Question certified answered in the negative.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg. Judge Gabrielli dissents and votes to affirm in the following memorandum.

Gabrielli, J.

(dissenting). I dissent and vote to affirm the order appealed from and answer the question certified in the affirmative, for the reasons stated by Mr. Justice Louis J. Capozzoli in his concurring opinion at the Appellate Division (58 AD2d 347, 358). There is nothing in the memoranda of agreement between the parties indicative of any intent to distinguish between the various types of pension plans. Thus, at this stage in the proceedings, the legal conclusion that there was such an intent is based on sheer speculation. Indeed, the letters of May 10 and May 13, 1968 represent a perfectly valid agreement. To deprive the appellant pensioners of their day in court, based upon this record, is unwarranted.

Order reversed, etc.  