
    Austin Herzell, Appellant, v. “Alfred ” Tyler Smith (the Name “Alfred ” Being Fictitious, Defendant’s First Name Being Unknown to Plaintiff), Respondent.
   Judgment affirmed, with costs. No opinion. Lazansky, P. J., Kapper and Carswell, JJ., concur; Seudder and Davis, JJ., dissent on the ground that there was an issue of fact which should have been submitted to the jury.  