
    Ella M. Thrower et al., Respondents, v John J. Smith et al., Appellants, and Isidoro Perez, Respondent.
    Submitted November 13, 1978;
    decided December 27, 1978
   On the court’s own motion, order of the Appellate Division will be affirmed, without costs, and judgment absolute ordered against appellant Estate of Berens on said appellant’s stipulation, unless within 30 days appellant makes application to withdraw the appeal herein, in which event leave to do so is hereby granted. The decision at the Appellate Division having been made, in part, in the exercise of discretion, this court would be bound in any event to affirm and render judgment absolute. (CPLR 5615; see Cohen and Karger, Powers of the New York Court of Appeals, pp 295-296, 304-305.) Appellant Smith’s appeal withdrawn on consent. Respondent’s motion to dismiss the appeal herein dismissed as academic.  