Opinion
Argued November 30, 1967
Decided December 28, 1967
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH A. SARAFITE, J.
Harry Litwin for appellant.
Sidney Schwamm and Morton S. Heller for Frederick W. Degenhardt, respondent.
No appearance for Gabriel S. Avallone, respondent.
Order modified on the dissenting opinion at the Appellate Division, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance therewith. No opinion.
Concur: Chief Judge FULD and Judges VAN VOORHIS, SCILEPPI, BERGAN and KEATING. Judges BURKE and BREITEL dissent and vote to affirm on the opinions at Special Term and the Appellate Division.