For the reasons stated in the opinion of the court, herewith handed down (235 App. Div. 444), in the companion appeal from an order denying defendant’s motion to dismiss the complaint for insufficiency, it is determined that that order should be reversed and the motion granted. It becomes unnecessary, therefore, to decide whether or not a defense interposed to such complaint is sufficient in law.
The appeal should be dismissed, without costs.
Present — Finch, P. J., Merrell, McAvoy, Martin and Sherman, JJ.
Appeal dismissed, without costs.