In the Matter of the Application of Continental Guaranty Corporation, Appellant, for an Alternative. Mandamus Order against Charles L. Craig, as Comptroller of the City of New York, and Others, Respondents

In the Matter of the Application of Continental Guaranty Corporation, Appellant, for an Alternative. Mandamus Order against Charles L. Craig, as Comptroller of the City of New York, and Others, Respondents. (Appeal No. 2.) First Department, March 13, 1925. See headnote in Matter of Continental Guaranty Corp. v. Craig (ante, p. 236). Appeal by the petitioner, Continental Guaranty Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of June, 1924, granting defendants’ motion for a final order of dismissal of this proceeding and of an alternative mandamus order issued herein and for judgment in favor of the defendants on the merits. Leo Oppenheimer [Milton P. Kupfer of counsel], for the appellant. Clarence J. Shearn, for George McAneny and others, constituting the Transit Commission, as amicus curiae. George P. Nicholson, Corporation Counsel [Elliot S. Benedict of counsel; John F. O’Brien and Joseph L. Pascal with him on the brief], for the respondents. [MAJORITY — Dowling, J.:] Dowling, J.: In the accompanying appeal (Matter of Continental Guaranty Corp. v. Craig, No. 1, 212 App. Div. 236) the order setting aside the verdict for petitioner and directing a verdict for respondents, which is the basis of the present order dismissing the proceeding, has been reversed and the verdict of the jury reinstated. The order now under consideration should, therefore, be reversed, with costs to appellant, and the motion to dismiss the alternative mandamus order and the petition filed herein and to grant the costs of the proceeding to defendants should be denied, with ten dollars costs. And the proceeding is remitted to Special Term for the entry of an appropriate order upon the reinstated verdict of the jury in favor of the petitioner herein. Clarke, P. J., Merrell and McAvoy, JJ., concur; Burr, J., dissents. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and the proceeding remitted to the court at Special Term for the entry of an appropriate order upon the reinstated verdict of the jury in favor of the relator [petitioner] herein.