Judgment affirmed, with costs; no opinion.

Concur: LOUGHRAN, Ch. J., DESMOND, THACHER, DYE and FULD, JJ.; LEWIS and CONWAY, JJ., dissent and vote for reversal upon the ground that it cannot be said upon the present record that "there is in truth nothing to be tried" (Curry v. Mackenzie,239 N.Y. 267, 270). *Page 633