I dissent on the. ground that the language of the opinion in the Court of Appeals in C. R. Parmele Co. v. Haas (171 N. Y. 579), concurred in by the entire court, is applicable to this case and should be controlling upon the courts until it is disapproved, by that court, and by it held to be unnecessary to the decision in that case. (See, also, Nicoll v. Clark, 13 Misc, Rep. 128; O'Reilly, Skelly & Fogarty Co. v. Greene, 17 id. 302; S. C., 18 id. 423; Fuller & Co. v. Schrenk, 58 App. Div. 222.)
Order and judgment appealed from reversed and demurrer sustained, with costs of the trial in the court below and of this appeal, and with leave to the plaintiff to amend its complaint within twenty days from the service of a certified copy of this order on payment of such costs.