Smith v. Stewart , 38 N.Y.2d 747 ( 1975 )

Order affirmed, with costs to abide the event, on the memorandum at the Appellate Division (45 AD2d 853). Question certified answered in the affirmative.

Concur: Chief Judge Breitel and Judges Gabrielli, Wachtler, and Cooke. Judge Fuchsberg dissents and votes to reverse in the following opinion in which Judges Jasen and Jones concur.