Opinion
May 10, 1940.
Present — Martin, P.J., O'Malley, Glennon, Untermyer and Dore, JJ.; Untermyer, J., dissents and votes to reverse the judgment and order granting plaintiff's motion for summary judgment and to deny said motion, and to affirm the order denying defendant's cross-motion for summary judgment, on the authority of American Surety Co. v. Palmer ( 240 N.Y. 63).
Judgment and orders affirmed, with costs. No opinion.