Judgment and order reversed on the law and the facts, and a new trial granted, with costs to appellant to abide the event. We hold that the proof presented questions of fact which should have been submitted to the jury. Jayeox, Young and Lazansky, JJ., concur; Rich, J., taking no part; Kapper, J., dissents, and votes to affirm, on the ground that upon the record presented a finding against defendants would not be supported by the evidence.