Opinion
November, 1930.
Appeal from Supreme Court, Saratoga County.
The reversal on the former appeal and granting of a new trial was on the ground that on the present proof a cause of action was not shown, but it could not be said that further proof could not be offered and it was for that purpose that a new trial was granted. But upon the decision of this court the trial judge was justified in understanding that when the former record was stipulated there was no cause of action shown. Van Kirk, P.J., Hinman and Hill, JJ. concur; Davis and Whitmyer, JJ., dissent. Judgment affirmed, with costs.