Opinion
September 9, 1941.
Appeal from Supreme Court, New York County.
Present — O'Malley, Glennon, Dore, Cohn and Callahan, JJ.; O'Malley, J., dissents and votes to reverse and grant the motion; dissenting opinion by O'Malley, J. [ 177 Misc. 142.]
Order affirmed, without costs. (See Matter of Holley [ Rittenberg], 268 N.Y. 484.) Leave to appeal to the Court of Appeals granted.
The petitioner-appellant herein did not consent to the declinations. In this respect at least the situation differs from that presented in Matter of Holley ( Rittenberg) ( 268 N.Y. 484). I, accordingly, dissent upon the authority of Matter of Powers v. Coughlin ( 268 N.Y. 623), and vote for reversal of the order appealed from,