Opinion
May Term, 1896.
Judgment affirmed, with costs. The court is not unanimous as to whether the facts proved are sufficient to support a finding of negligence on the part of the defendant. —
This case has heretofore been before the court upon appeal (73 Hun, 443), and the facts do not seem to be substantially different from what they then appeared to be. The trial has been had and conducted pursuant to the views expressed by the General Term upon the former appeal, and whatever may be the views of the several members of this court upon the questions involved, the orderly administration of justice and a proper regard for the interests of the parties litigating, require that we should consider the decision heretofore made upon those questions, as the law of this particular case until it is otherwise decided by the court of last resort. Out of respect, therefore, to the decision and opinion heretofore rendered in this case upon appeal and for the reason above stated, the judgment should be affirmed, with costs and disbursements. While the members of this court concur in this affirmance, for the reasons given, it is proper to state that the members thereof do not all concur in the view that, as an original proposition, the facts proved are sufficient to sustain the finding of negligence upon the part of the defendant. It is, therefore, ordered that the judgment and order be affirmed, with costs; the court not being unanimous in holding that the facts proved are sufficient to support the finding that the defendant was guilty of negligence, that fact should be entered in the order. All concurred.