Opinion
April 8, 1952.
Present — Dore, J.P., Cohn, Callahan, Van Voorhis and Shientag, JJ.
If the defendant agrees that the reference may be dispensed with, the order is unanimously modified, without costs, by eliminating the provision for the reference and, as so modified, affirmed. If the defendant wishes the reference to proceed, the provision for costs thereof is modified to require defendant to pay only in the first instance, subject to the right of taxation in the event he is ultimately successful. Settle order on notice.