Order, entered on December 18, 1964, unanimously affirmed, without costs and without disbursements. Only the plaintiff has appealed but, in affirming, it should be noted that we do not approve of the condition imposed by Special Term that the denial should be “ without prejudice to any plenary action plaintiff might be advised to institute.” (See Hmdelmcm v. Peabody, 285 App. Div. 689; Gallin v. Stafford, 10 A D 2d 915, affd. 9 N Y 2d 894.) Concur — Botein, P. J., Breitel, McNally, Stevens and Eager, JJ.