Opinion
November 15, 1985
Appeal from the Supreme Court, Erie County, Feeman, J.
Present — Callahan, J.P., Boomer, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously reversed, on the law and facts, without costs, and complaint dismissed. Memorandum: The defendant installed sets of coin-operated washing and drying machines in an apartment complex owned by the plaintiff. Unlike the arrangement in the companion action (see, Leinwand v Swan Coin-O-Matic Laundry [appeal No. 2], 115 A.D.2d 302), we find that each set of machines was installed, at the request and for the benefit of an individual tenant, in the basement area used by that tenant, and was connected to the utilities serving the tenant. Under the circumstances, we conclude that the part performance was not unequivocally referable to the alleged oral agreement whereby the defendant was to pay the plaintiff a portion of the gross receipts from the machines.