dissents and votes to affirm upon the authority of Friedman v. N. Y. Central R. R. Co. (206 App. Div. 169); Kelly, P. J., concurs with Kapper, J., being also of opinion that the order was within the discretion of the justice at Special Term, with which this court should not interfere. (Middleton v. Boardman, 240 N. Y. 552.) Settle order on notice. "