¶1We dissent on the opinion of Justice Fein at Trial Term (87 Misc 2d 829) and on the rationale of the concurring opinion of Justice Shapiro in Ward v Kovacs (55 AD2d 391, 404-405).
¶2Markewich and Sandler, JJ., concur with Murphy, P.J.; Lupiano and Sullivan, JJ., dissent in an opinion by Lupiano, J.
¶3Judgment, Supreme Court, New York County, entered on September 7, 1976, reversed, on the law, and this matter remanded for a new trial, with $75 costs and disbursements of this appeal to abide the event.