Remittitur amended to read as follows: Judgment of Appellate Division and that of Special Term dismissing *Page 555 third counterclaim affirmed, without costs. Otherwise, judgment of Appellate Division and that of Special Term reversed and judgment directed for the defendant-appellant in accordance with the opinion herein (274 N.Y. 250), with costs in all courts. No opinion.

Concur: CRANE, Ch. J., O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ. Taking no part: LEHMAN, J.