Argued November 24, 1941;
decided January 8, 1942.
*233 M’Cready Sykes, George L. Shearer and Harold F. Pritchard for appellant.
James F. Curtis and Richard H. McCann for respondent.
The referee’s report, approved by Special Term and the Appellate Division, is correct. (Matter of Board of Water Supply of the City of New York, 277 N. Y. 452; People ex rel. Amalgamated Properties, Inc., v. Sutton, 274 N. Y. 309.)
Upon this record we are constrained to affirm the order of the Appellate Division since the report of the referee is consistent with the theory of the trial.
The order should be affirmed, with costs.
Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.
Order affirmed.
287 N.Y. 232
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