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William Zinke and Diedrich Runge, Copartners, etc. v. John C. Hipkins and Farmers' Loan and Trust Company, Individually, etc.
Putnam, J.:
Where a justice who sat in an appeal here is reported as “ not voting,” the judgment of the others is not unanimous. (Wangner v. Grimm, 169 N. Y. 421, 427.) The test now of the right to appeal to the Court of Appeals is where one or more justices of this court “ dissents from the decision.” (Code Civ. Proc. § 190, subd. 1, as amd. by Laws of 1917, chap. 290.) As there was no actual dissent to our judgment of affirmance, therefore, in correction of our order of October eighth, leave to appeal -to' the Court of Appeals is hereby granted.
Jenks, P. J., Rich, Kelly and Jaycox, JJ., concur.
Motion granted.