Opinion
February, 1934.
Present — Finch, P.J., Merrell, Martin, O'Malley and Untermyer, JJ.; Merrell and Martin, JJ., dissent and vote to reverse and grant a new trial on the ground that there was a question of fact for the jury.
Judgment modified by providing that the dismissal of the complaint is without prejudice to another action under the provisions of section 23 of the Civil Practice Act, and as so modified affirmed, with costs to the respondent. No opinion.