¶1This case, I do not think, in principle can be distinguished from Hilton v. Cram (112 App. Div. 35), recently decided by this court. A further examination, however, of the question involved has led me to the conclúsion that that case was incorrectly decided, and for that reason we should not follow it, and, as it seems to me, our decision should be placed upon that ground and not upon the ground that the facts here distinguish this case from that. . The question presented here, and the principle to be applied is precisély the same as in the Gram case/
¶2I, therefore, concur in the result of the opinion of Mr. Justice Laughlin.
¶3Exceptions sustained, motion for new trial granted, costs to plaintiff to abide event. Settle order on notice.