¶1As petitioner denies that he attempted any fraud in his examination, the order should be modified by granting an alternative order so that the issues of fact involved may be tried, and as so modified affirmed, without costs. (See Matter of Pape v. Kern, 263 App. Div. 557, decided simultaneously herewith.)
¶2Dore, Cohn and Callahan, JJ., concur; Martin, P. J., and Townley, J., dissent and vote to affirm.
¶3Order modified by granting an alternative order so that the issues of fact involved may be tried, and as so modified affirmed, without costs. Settle order on notice.