Majority
Headnote
Appeal from a judgment entered in the New York county clerk’s office on the 8th day of March, 1911, upon a verdict, and from an order entered on the 7th day of April, 1911, denying a motion for a new trial.We think there was a question to be submitted to the jury as to whether the plaintiff was not responsible for the damages caused by the cracked cylinder, and it was, therefore, error to dismiss the counterclaim to that extent. The judgment and order will, therefore, be reversed and a new trial ordered, with costs to appellants to abide event, unless plaintiff stipulates to reduce the judgment as entered to the sum of $501.09; in which event the judgment as so reduced and the order appealed from will be affirmed, without costs. Present—Ingraham, P. J., Laughlin, Clarke, Scott and Miller, JJ. Judgment and order reversed, new trial ordered, costs to appellants to abide event, unless plaintiff stipulates to reduce judgment to $501.09; in which event judgment as modified and order affirmed, without costs. Order to be settled on notice.