Order and interlocutory judgment reversed and judgment ordered for defendant on demurrer, with costs in all courts'. Question certified answered in the negative, with leave to plaintiff to serve amended complaint within twenty days on payment of such costs, on dissenting opinion of Smith, P. J., below.

Concur: Cullen, Oh. J., Haight, Vann, Werner, Willard Bartlett, Chase and Collin, JJ.