Opinion
Argued October 26, 1942
Decided December 3, 1942
Appeal from the Supreme Court, Appellate Division, Fourth Department, JAMES, J.
Clayton M. Smith for appellant.
Thomas R. Wheeler and Edward L. Robinson, Jr., for respondent.
Judgment of Appellate Division reversed and a new trial granted, with costs to abide the event on the ground that questions of fact were presented by the evidence and were properly submitted to the jury. No opinion.
Concur: LOUGHRAN, RIPPEY, LEWIS, CONWAY and DESMOND, JJ. Dissenting: LEHMAN, Ch. J., and FINCH, J.