On plaintiff’s appeal the judgment of the Appellate Division is modified, so that instead of reducing the judgment in favor of the plaintiff a new trial is ordered, with costs to abide the event. If, however, within ten days plaintiff files in this court a stipulation waiving his appeal, then the judgment of the Appellate Division is affirmed, without costs in this court to either party; no opinion.

Concur: Cullen, Ch. J., Gray, Haight, Werner, Willard Bartlett, Chase and Collin, JJ,