
    William Zinke and Diedrich Runge, Copartners, etc., Respondents, v. John C. Hipkins and Farmers’ Loan and Trust Company, Individually, etc., Appellants.
    Second Department,
    November 5, 1920.
    Appeal — when judgment of Appellate Division not unanimous — justice “ not voting ”—leave to appeal to Court of Appeals.
    Where a justice who sat in an appeal to the Appellate Division is reported as - “ not voting ” the judgment of the other justices is-not unanimous.
    Under such circumstances, although there was no actual dissent to a judgment of affirmance by the Appellate Division, it may grant leave to appeal to the Court of Appeals.
    Motion for reargument or for leave to appeal to the Court of Appeals. (See 193 App. Div. 913.)
    
      Robert E. McLear, for the motion.
    
      Alexander Holtzoff [Paul Windels with him on the brief], opposed.
   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.  