
    L. M. Rosenthal & Company, Inc., Appellant-Respondent, v. Leon Levy et al., Respondents-Appellants.
   Order, Supreme Court, New York County, entered on April 1, 1971, denying cross motions for summary judgment, unanimously affirmed, without costs and without disbursements. We consider this action an appropriate case for an early trial and, consequently, we direct that either party may notice it for trial for the October 1971 Term of the court. Concur — Nunez, J. P., Murphy and Eager, JJ.; Kupferman, J., and Steuer, J., concur in the following memoranda: Kupferman, J'. I join in Judge Steuer’s concurring opinion, except that I believe we can grant a preference when the situation calls for it. Steuer, J¡ I concur in the result, namely, an affirmance of Special Term’s decision that an issue exists which precludes the granting of summary judgment. In view of the vigorous arguments presented I feel that that issue should be defined. I believe that the sublease, according to its terms, commenced on August 17, 1970. The fact that unforeseen circumstances prevented defendant from giving possession on that date except with great inconvenience to itself does not bear on the parties’ rights. The failure to give plaintiff possession on that date gave plaintiff a right to rescind. The sole remaining issue is whether that right to rescind was timely exercised. I further agree with the majority that this is an appropriate action for an early trial, but in view of the expressed, objection of the defendant I do not believe that we can grant a preference without a request and proper showing for the same.  