Majority
p. 832In the Matter of the Application of Emil Bittler, as Executor, etc., of Emil Bittler, Deceased, for a Peremptory Mandamus Order Directed to George P. Nicholson, Esq., as Corporation Counsel, etc., Closing and Discontinuance of Union Street or Uncas Street, Otherwise Known as Fox Street, Otherwise Known as East 150th Street, in the Twenty-third Ward, Borough of The Bronx.
Order reversed, with ten dollars costs and disbursements to the respondent, the motion for a peremptory mandamus order denied, and an alternative order of mandamus granted, upon the ground that the petitioner has not shown that he has a legal right to the peremptory order, and that the answering affidavits present questions of fact which can only be determined upon a trial. Settle order on notice. Present ■— Dowling, P. J., Merrell, Finch, MeAvoy and Proskauer, JJ.