Judgment affirmed, with costs, and the question certified answered in the affirmative.
The court does not consider the constitutional question, because it is not plainly presented in the complaint, and for the additional reason that counsel expressly waived its consideration on the argument; no opinion.
Concur: PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN, VANN and LANDON, JJ. *Page 588