The issues in this case are identical with those in Sciaballa v. Illinois Surety Co. (166 App. Div. 677), decided herewith, and the decision herein should follow the decision in that case.
Ingraham, P. J., and Laughlin, J., concurred; McLaughlin and Dowling, JJ., dissented.
Judgment reversed, with costs, and judgment ordered for plaintiff as directed in opinion. Order to be settled on notice.