Opinion
May, 1910.
On the first trial of this case there was a verdict for plaintiff. On appeal to this court one of our members was disqualified to sit and the other four were equally divided and, therefore, the case was sent to the Third Department. (See 84 App. Div. 632.) The judgment was there reversed and a new trial ordered. (See 86 App. Div. 593.) Upon a second trial the plaintiff was nonsuited, and on appeal to this court there was an unanimous affirmance, following the decision of the Third Department. (See 136 App. Div. 944.) But inasmuch as our court differed so widely in opinion in the case, we think there is sufficient doubt to warrant us in granting the motion to appeal to the Court of Appeals. Motion for reargument denied. Motion for leave to appeal to Court of Appeals granted.