Opinion
April, 1929.
Present — Lazansky, P.J., Rich, Kapper, Carswell and Scudder, JJ.
Judgment and order denying motion to set aside verdict unanimously affirmed, with costs. We are of opinion that upon the undisputed facts plaintiff was engaged in interstate commerce as a matter of law. ( New York Cent. R.R. Co. v. Porter, 249 U.S. 168; Southern Railway Co. v. Puckett, 244 id. 571, 573; Pedersen v. Del., Lack. West. R.R., 229 id. 146.) No request was made to submit to the jury the question whether plaintiff was engaged in interstate commerce; nor did the motion to dismiss the complaint point out that there was any such question in the case. Had the question been submitted to the jury and a verdict rendered against plaintiff on this point, such a verdict, in our opinion, would have been contrary to the evidence.