¶1I dissent and vote to affirm the judgment below.
¶2As fairly stated in the majority opinion, the pleadings, the bill of particulars and the theory upon which the case was tried stressed the existence of an express promise by the daughters. The Trial Judge found that no such promise was made and the record amply supports such finding. Moreover, the donees were the natural recipients of their father’s bounty. It seems to me, in the circumstances, that the interests of justice point towards an affirmance. The donor is hoist with his own petard. He has made his bed — I say let him lie in it.
¶3M. M. Frank and Bergan, JJ., concur with Breitel, J.; Botein, P. J., and McNally, J., dissent in separate opinions.
¶4Judgment reversed on the law and on the facts, and a new trial ordered in the exercise of discretion, with costs to abide the event.