MEMORANDUM. We agree with the conclusions of the dissenter at the Appellate Division that the execution of the power of attorney, claimed by respondent to constitute part performance sufficient to remove the bar of the Statute of Frauds, was not unequivocally referable to the contract asserted, and that the mere failure on the part of the appellant to carry out the supposed bargain could not give rise to an inference of fraud excusing the application of the statute.
The order appealed from should be reversed, the complaint dismissed and the matter remitted to Supreme Court, Suffolk County, for determination of the counterclaim, without costs.
Chief Judge FULD and Judges SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur; Judge BURKE taking no part.
Order reversed, without costs, and case remitted to Supreme Court, Suffolk County, for further proceedings in accordance with the memorandum herein.