Opinion
April Term, 1896.
Judgment and order affirmed, with costs, upon the opinion of Hardin, P.J., reported in 88 Hun, 196. —
This case appears to have been twice tried. Upon the first trial a nonsuit was directed which was set aside by the General Term of the fourth department and a new trial ordered. Upon the second trial the case was submitted to the jury and resulted in a verdict for the plaintiff. The only question to which our attention has been directed upon this appeal relates to the contributory negligence of the plaintiff's intestate. We are unable to discover that the evidence upon the second trial varies in any appreciable degree from that which was offered upon the former trial, so far as this question is concerned, nor does the appellant's counsel make any such contention upon the argument. In view, therefore, of the decision of the General Term it cannot be said that any error was committed by the learned trial justice in submitting this question to the jury. The judgment and order appealed from should be affirmed, with costs, upon the opinion of Hardin, P.J., delivered at the General Term and reported in 88 Hun, 196. All concurred.