Although the questions presented for consideration in this case are not entirely free from doubt, the better opinion is that the disposition made”of it by the Special Term is correct.
We adopt the opinion expressed by the learned justice in the court below, as expressive of our views of the question and of the conclusion at which he arrives.
The judgment should be affirmed; the costs of both parties to be paid out of the fund.
Present — Davis, P. J., Beady and Bakeett, JJ.Judgment affirmed; costs of the parties to be paid out of the fund.