Order modified so as to provide that the motion to dismiss the complaint as to the first and second causes of action be granted, and as so modified affirmed, without costs of this appeal to either party. (See Weglein v. Trow Directory, P. & B. Co., 152 App. Div. 705; Hinds v. Parker, 11 id. 327; Paul v. Fargo, 84 id. 9.) All concur, except Davis, J., who dissents as to the first cause of action, on the authority of Moulton v. Beecher (8 Hun, 100) and Halberstadt v. N. Y. Life Ins. Co. (194 N. Y. 1).