¶1This appeal was argued with the case of Matter of Hopper v. Britt (146 App. Div. 363) and presents the same question pre*372sented on that appeal. For the reasons stated in the opinion in that case the order appealed from must be reversed, with 1 ten dollars costs and disbursements, and the application denied, with fifty dollars costs.
¶2McLaughlin, Miller and Dowling, JJ., concurred; Clarke, J., dissented.
¶3Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs, as matter of law and not in the exercise of discretion.