Per Curiam:
We think that the evidence presented no real issue of fact as to the publication of the will. (Matter of Burnham, 201 App. Div. 621; affd., 234 N. Y. 475.) Therefore, the surrogate properly directed a verdict.
Kelly, P. J., Manning and Young, JJ., concur; Kelby, J., dissents, and reads for modification; Kapper, J., concurs with Kelby, J., for modification, and for a new trial, upon the ground that the evidence presented a question of fact as to the due execution of the will, but does not regard the constitutionality of section .457a of the Civil Practice Act as involved in such determination.