Opinion
November, 1905.
An examination of this case shows that the same facts were established upon the second trial as appeared on the first trial, and were considered by us on the first appeal, and that there is no evidence on this trial discrediting such facts or in any manner tending to change or explain their significance; that the same conclusions must be drawn from them now that were then drawn from them, and for that reason this judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event. (For the case on the former appeal see 92 App. Div. 135. ) All concurred, except Smith, J., dissenting; Houghton, J., not voting, not being a member of this court at the time this decision was handed down. Judgment and order reversed and new trial granted, with costs to appellant to abide event.