Werner, J.
This is not a unanimous affirmance. The cases of Harroun v. Brush El. Light Co. (152 N. Y. 212) *527and McDonnell v. N. Y. C. & H. R. R. R. Co. (159 N. Y. 524) are not in conflict with this decision. In the former case, the record recited four' justices as sitting, and they all concurred; in the latter case, all the justices composing the court heard the argument, but one of them died before it wrs decided. In this case one of the sitting justices did not vote, although he had the right to do so.
The motion should he denied, with ten dollars costs.
Parker, Ch. J., O’Brien, Bartlett, Yann, Landon and Cullen, JJ., concur.
Motion denied.