
    (June 12, 1956)
    R & K Corporation, Respondent, v. Kenmont Hat Co., Inc., Appellant.
   Bergan, J. (dissenting).

If the judgment in favor of plaintiff is not to be reversed on the merits, a new trial should be ordered on defendant’s motion based on newly discovered evidence. The proof in support of plaintiff’s case was that the notice sent to defendant by plaintiff stated that plaintiff wanted defendant’s space “for its immediate and personal use” and that this use was for dress manufacturing. But the proof in support of the motion to the effect that the sole business of this plaintiff was real estate holding and the owning and operation of this building is not contradicted by plaintiff’s affidavits. In these circumstances a new trial would be indicated and the order denying plaintiff’s motion should be reversed and the motion granted.

Botein, J. P., Frank and Valente, JJ., concur in decision; Bergan, J., dissents and votes to reverse and grant the motion in opinion, in which Bastow, J., concurs.

Order affirmed, with $20 costs and disbursements to the respondent.  