
    Robert E. Belknap, III, et al., as Coexecutors of Wolfram L. Ertinger, Deceased, Appellants, v Dean Witter & Co., Inc., et al., Respondents.
    Argued January 12, 1984;
    decided February 16, 1984
    
      APPEARANCES OF COUNSEL
    
      John Hay McConnell, Stephen A. Agus and Ellen Dowd Vitale for appellants.
    
      Jeffrey G. Steinberg and Christopher S. Rooney for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The April, 1968, corporate resolution of Laird, Bissel & Meeds, Inc. (LBM), on which plaintiffs’ decedent’s right to a pension is grounded, provided that “[i]n case of merger, the firm would attempt to have the pension continued, but could not, of course, guarantee that this would be the case.” As a consequence of this limitation, at the moment LBM merged with defendant, LBM’s responsibility to provide a pension could not be deemed a “debt, liability, [or] duty” that defendant agreed or was obligation to assume under section 1 (b) (ii) of the merger agreement. Insofar as that agreement was otherwise silent on the issue whether defendant had contracted to provide the pension, it was proper to admit extrinsic evidence that was probative of the parties’ intent (see Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 460).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur; Judge Simons taking no part.

Order affirmed, with costs, in a memorandum.  