Opinion
March, 1930.
Judgment and order denying motion to set aside verdict and for a new trial affirmed, with costs to appellant, respondent. No opinion. Lazansky, P.J., Kapper and Hagarty, JJ., concur; Young and Carswell, JJ., dissent, being of opinion that if a question of negligence is involved it was for the jury to say, in the circumstances, whether defendant was guilty of active negligence, whether he failed in his duty to refrain from intentionally or wantonly injuring plaintiff; and if the act be regarded as an assault and battery, a question of fact was involved as to whether more force was used by defendant than was reasonably necessary. Order denying defendant's motion to strike out costs allowed plaintiff in the judgment affirmed, without costs. ( Hayward v. Clifton, 221 App. Div. 802.) Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ., concur.