I agree with the reasoning in the first branch of the opinion of Mr. Justice Hirschberg, and, therefore, am in favor of reversing the judgment, but I do not concur in the affirmance of the judgment on the ground stated by him. If the evidence is open to his criticism we might remit the case to the Special Term, for the purpose of permitting the plaintiff to introduce additional evidence on the question whether the action was prosecuted collusively, but as the evidence now stands, I think the judgment should be reversed and a new trial granted.
Judgment affirmed, without costs.