(dissenting). I dissent upon the authority of Matter of Empire State Surety Co. (214 N. Y. 553, 563), when considered in connection with section 480 of the Civil Practice Act (as amd. by Laws of 1927, chap. 623). (See, also, Marcus v. Kane, 18 F. [2d] 722, wherein it was held by the Circuit Court of Appeals in proceedings growing out of this litigation that the injured person, Borger, was a creditor of the tort feasor from the date of his injuries.)
Order reversed, with ten dollars costs and disbursements, and motion to correct judgment granted to the extent of allowing interest from August 27, 1925, instead of from October 8, 1921. Settle order on notice.