A careful comparison of the record in this case with that of Shamer v. The Same Defendant, reported in 114 N. Y., 236; 23 St. Rep., 293, satisfies us that there is no material distinction to be made between the two cases, and upon the authority and reasoning of that case this judgment is affimed, with costs.

All concur, O’Brien and Maynard, JJ., not sitting.

Affirming 40 St. Rep., 928.