¶1The correct rule in cases such as this is that where there is a disagreement between the parties as to whether or not a memorandum contains all the essential agreed upon terms of a contract, parol evidence is admissible to support the claim of the party resisting specific performance that there are essential terms, agreed upon by the parties, which are not set forth or referred to in the memorandum. (See N E. D. Holding Co. v McKinley, 246 NY 40, 45.) The majority, however, completely ignores the fact that in the present case it is an established fact that essential terms are indeed missing from the memorandum, wherefore there is no need for a trial to substantiate defendant’s contentions.
¶2Numerous cases support the proposition that a mortgage and the terms thereof, if agreed upon, are essential elements of a contract, and those terms must be set forth in the writing, otherwise specific performance cannot be decreed. (Keystone Hardware Corp. v Tague, 246 NY 79; Monaco v Levy, 12 AD2d 790; see, also N. E. D. Holding Co. v McKinley, supra.)It is clear from an examination of the memorandum in the present case that no mention is made of a mortgage or of the terms thereof. Nevertheless, the plaintiff, in his affidavit in opposition to the defendant’s motion for summary judgment, states "[t]hat it is a fact that the parties agreed that a mortgage would be given as security for the unpaid balance of the purchase price”. Thus, the plaintiff has himself admitted that there was an agreement upon an essential term which is nowhere referred to in the memorandum. On this state of the record, there is no need for further proof, since any other terms of agreement which the defendant might establish and which were absent from the memorandum, would be merely cumulative. The absence of reference to the mortgage, conceded by plaintiff to have agreed upon, is in and of itself *100sufficient to defeat the memorandum as a sufficient writing upon which specific performance can be granted.
¶3For the reasons stated herein, I would reverse the order appealed from and grant the defendant’s motion for summary judgment dismissing the complaint.
¶4Kane, Larkin and Reynolds, JJ., concur with Sweeney, J.; Greenblott, J. P., dissents and votes to reverse in an opinion.
¶5Order affirmed, with costs.