The question in this case is the same as that presented in the case of McCrea v. McClenahan (114 App. Div. 70), decided herewith; and for the reasons there stated, the judgment appealed from must be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend the complaint upon payment of costs in this court and in the court below.
McLaughlin and Houghton, JJ., concurred; O’Brien, P. J., and Clarke, J., dissented.