
    In the Matter of Miguel Calderon, Respondent, v. Salvatore Sclafani et al., Respondents, and Angelo Del Toro, Appellant.
   Judgment, Supreme Court, New York County, entered on October 15, 1974, affirmed, without costs and without disbursements. Concur—-Kupferman, J. P., Murphy and Yesawich, JJ.; Lupiano and Capozzoli, JJ., dissent in the following memorandum: We dissent. It is our view that the evidentiary basis delineated in the referee’s report as warranting a new election does not come within the ambit of Matter of Lowenstein v. Larkin (40 A D 2d 604, affd. 31 N Y 2d 654)  