Judgment reversed upon the law and the facts, without costs, and judgment directed in favor of plaintiff, without costs. The evidence fairly preponderates in support of the allegations of the plaintiff, and, therefore, the complaint should not have been dismissed, but, on the contrary, judgment should have been granted for the relief demanded. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Young, Kapper and Carswell, JJ., concur; Lazansky, P.J., concurs for reversal but votes for a new trial; Hagarty, J., dissents and votes to affirm. Settle order on notice.