I concur, except that I think a new trial should be ordered, instead of a dismissal of the complaint.
Parker, J.In view of the construction of this very statute, and obligation assumed by defendant, by the Court of Appeals, in Coster v. Mayor, eta. (43 N. Y. R., 399.), I am constrained to concur in the foregoing opinion, except that I agree with Judge Potter in thinking that the judgment should be reversed and a new trial granted, with costs to abide the event; and I think the order of reference should be discharged.
Judgment reversed, order of reference vacated, and new tidal ordered, with costs to abide event.