(dissenting). I dissent and vote to affirm. Reversal here conflicts directly and irreconcilably with the controlling case of Matter of Crandall (196 N. Y. 127) which construed this identical statute. The Crandall opinion (pp. 130-134) states two grounds for denying relief in a situation like this. Both grounds were soundly based on reason and principle and both are applicable here.
Chief Judge Conway and Judges Dye, Fuld, Froessel and Burke concur with Judge Van Voorhis ; Judge Desmond dissents and votes to affirm in an opinion.
Order reversed, etc.