Judgment unanimously affirmed, with costs to the respondents. The defendant John Byrne having died on May 11,1940, subsequent to the argument of the appeal, the above determination is ordered to be entered nunc pro tunc as of April 23, 1940. (See Russell v. Butler Grocery Co., 240 App. Div. 31.) Present • — • Martin, P. J., O’Malley, Glennon, Untermyer and Dore, JJ.
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