Order of Appellate Division reversed and that of Special Term affirmed, without costs to either party. First *Page 550 two questions certified answered in the negative. Third question answered in the affirmative, on dissenting opinion of MILLER, J., below.
Concur: CULLEN, Ch. J., HAIGHT, VANN, WERNER, HISCOCK and COLLIN, JJ. Absent: GRAY, J.