We think this case is controlled by the decision in Matter of Gilfillan v. Beyer (124 Misc. Rep. 628; 240 N. Y. 579), where the facts were almost identical.

Nothing that was said in Matter of Callaghan v. Voorhis (252 N. Y. 14) was intended to impair the authority of that decision. The court did no more than apply the principle previously enforced to the particular situation then before it. Indeed, the Gilfillan case was cited as authority.

The order should be affirmed without costs.

Cardozo, Ch. J., Pound, Kellogg and O’Brien, JJ.¿ concur; Crane and Hubbs, JJ., dissent; Lehman, J., not voting.

Order affirmed.