The Appellate Division had authority to reverse the judgment as a matter of discretion. It did not exercise that power, however, but reversed as a matter of law. No error of law was involved. We are, therefore, compelled to reverse. The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division.

CARDOZO, Ch. J. POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.

Ordered accordingly.