
    Nisson Goldberg Rudkowsky, Appellant, v. The Equitable Life Assurance Society of the United States, Respondent.
    First Department,
    May 29, 1931.
    
      
      Borris M. Komar, for the appellant.
    
      William C. Cannon of counsel [David E. Hudson with him on the brief; Davis, Polk, Wardwell, Gardiner & Reed, attorneys], for the respondent.
   Per Curiam.

The plaintiff was entitled to have his motion considered upon the merits. Whether final decision thereon should be withheld a reasonable time until the court shall have had the benefit of the views of the learned referee before whom test cases involving similar questions are pending, is a matter for the justice at Special Term to decide in the exercise of a sound discretion.

The order should be reversed, with ten dollars costs and disbursements, and the matter remitted to the justice at Special Term before whom the motion was brought on for consideration upon the merits.

Present — Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ.

Order reversed, with ten dollars costs and disbursements, and the matter remitted to Special Term for decision on the merits.  