Opinion
July 1, 1942.
Present — Cunningham, Taylor, Dowling, Harris and McCurn, JJ.
Judgment and order affirmed, with costs. All concur, except Dowling, J., who dissents and votes for reversal and for granting a new trial on the ground that under the proof the defendant was a trespasser as matter of law and the motion for direction of a verdict should have been granted, and on the further ground that the verdict was against the weight of the evidence. (See Hay v. Cohoes Company, 2 N.Y. 159; Riegler v. Tribune Association, 40 App. Div. 324; St. Peter v. Denison, 58 N.Y. 416; Turner v. Degnon-McLean Contracting Co., 99 App. Div. 135; affd., 184 N.Y. 525; Keber v. Central Brewing Company of N.Y., 150 N.Y. Supp. 986; McCahill v. Parker Co., 49 Misc. 258; Bohan v. P.J.G.L. Co., 122 N.Y. 18, 26; Sullivan v. Dunham, 161 id. 290; Olin v. United Electric Light and Power Co., 82 Misc. 427; Mayor etc., of N.Y. v. Law, 125 N.Y. 380, 390; Guille v. Swan, 19 Johns. 381; Rochester Gas Electric Corporation v. Dunlop, 148 Misc. 849; Kentucky Traction and Terminal Company v. Bain, 174 Ky. 679; 192 S.W. 656; 16 Neg. Comp. Cases Anno. 328.) Losee v. Buchanan ( 51 N.Y. 476) is not an authority to the contrary. (The judgment is for defendants for no cause of action in an automobile negligence action. The order denies plaintiff's motion for a directed verdict, or, in the alternative, for a new trial.)