Opinion
October 16, 1974
Judgment, Supreme Court, New York County, entered on October 15, 1974, affirmed, without costs and without disbursements.
Concur — Kupferman, J.P., Murphy and Yesawich, JJ.; Lupiano and Capozzoli, JJ., dissent in the following memorandum: We dissent. It is our view that the evidentiary basis delineated in the referee's report as warranting a new election does not come within the ambit of Matter of Lowenstein v. Larkin ( 40 A.D.2d 604, affd. 31 N.Y.2d 654).