PER CURIAM.
The decision upon which the judgment appealed from rests is predicated upon the law as applied by the learned referee in Dougherty v. Equitable Life Assurance Soc. of U.S. ( 144 Misc. 363), the appeal from which is decided herewith ( 238 App. Div. 696). Our decision therein adopts the findings and conclusions of the referee so far as material to sustain the decision herein.
It follows, therefore, that the judgment appealed from should be in all respects affirmed, without costs.
PER CURIAM.
Judgment so far as appealed from affirmed, without costs, with leave to appeal to the Court of Appeals if so advised.