
    Irwin Emerman, Doing Business under the Name Tumarkin, Morgan & Emerman, Appellant, v. City of Yonkers, Respondent.
   In an action to recover for engineering services rendered, plaintiff appeals from the following portions of an order and a judgment of the Supreme Court, Westchester County, entered April 27, 1970 and May 8,1970, respectively: (1) so much of the order as (a) denied his motion for summary judgment to the extent that it was upon his claim for services under Phase I of the contract for construction of a Service Center and (b) granted defendant’s cross motion for partial summary judgment dismissing said claim under Phase I; and (2) so much of the judgment as is in favor of defendant dismissing said claim under Phase I. Order and judgment affirmed insofar as appealed from, with a single bill of $10 costs and disbursements. No opinion. Rabin, P. J., Hopkins and Latham, JJ., concur; Munder and Shapiro, JJ., dissent and vote (1) to modify the order by striking therefrom the fourth and fifth decretal paragraphs, which granted defendant’s cross motion, and to substitute a provision therefor denying defendant’s motion and (2) to reverse the judgment insofar as appealed from. It is our view that if the wording of paragraph 25 of the contract between the parties does not as a matter of law set the compensation of plaintiff at 6% of $1,570,000 less $10,000 there is at least a question of fact in that regard. The $1,570,000 figure is the final estimate of the project’s construction costs under Phase I of the contract as approved by defendant. The addendum to the contract relied upon by Special Term and the majority of this court simply states that defendant will not bear any costs incident to the redesign of the project; and the addendum would appear to have no effect on the obligations of defendant under paragraph 25 of the contract. But in any event the question is sufficiently in doubt to prevent the granting of summary judgment to either side on the question in issue on this appeal.  