Our examination of the record leads us to conclude that, as between the facts found by the Justice at Special Term, and the new findings made at the Appellate Division, the weight of evidence favors the findings made at Special Term..

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughban, Rippey, Lewis, Conway and • Desmond, J J., concur; Thaoheb, J., taking no part.

Ordered accordingly.