Opinion
May 18, 1962
Appeal from the Erie Supreme Court.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Order and judgment, and amended judgment insofar as appealed from, reversed on the law and facts, without costs of this appeal to any party, and a new trial granted. Memorandum: That portion of the judgment which awards the amount of $25, $425 and $115.55 costs and disbursements has become academic because of our decision in Martin v. Siegfried Constr. Co. ( 16 A.D.2d 383). That portion of the judgment which awards $2,250 as attorneys' fees and $21.50 disbursements should be reversed at this time and the problems involved should await the conclusion and disposition of this case and of the case of Martin v. Siegfried Constr. Co., Inc. Williams, P.J., Bastow, Goldman and McClusky, JJ., concur; Halpern, J., dissents and votes to affirm on the authority of Jordan v. City of New York ( 3 A.D.2d 507, affd. 5 N.Y.2d 723).