
    Gelbro Realty, Inc., Respondent, v. Lucille McCabe, as Executrix of J. Ralph Sawyer, Deceased, et al., Appellants.
   Appeal from an order of the Supreme Court at Special Term, entered August 3, 1973, which denied a motion to dismiss the complaint and cancel the notice of pendency filed by plaintiff. In Matter of Sawyer (45 A D 2d 823) an order of the Surrogate’s Court of Columbia County denying the application of appellant therein for reargument .was affirmed. Implicit in that determination was a finding that the condition precedent to a binding contract was never fulfilled. All the causes of action set forth in the complaint are premised on the existence of a valid contract which we find did not exist. Order reversed, on the law and the facts, without costs, complaint dismissed and notice of pendency canceled. Herlihy, P. J., Greenblott, Cooke, Kane and Reynolds, JJ., concur.  