I concur in the result, but I do not concur in what is said by Mr. Justice Scott as to the right of the plaintiff to recover any portion of this payment made to the defendant, for the reasons stated in my dissenting opinion in the case of Perry v. Van Norden Trust Co. (118 App. Div. 288), decided herewith.
McLaughlin, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed.