Majority
Headnote
Appeal from a judgment of the Supreme Coxxrt, entered in the New York county clerk’s office on the 15th day of January, 1913, upon the verdict of a jury for $2,000, and also from an order entered on the 16th day of January, 1913, denying a motion for a new trial in an action by an employee to recover damages, alleging negligence.Upon careful consideration of this record we are satisfied that the verdict is against the weight of evidence. The plaintiff failed to establish that there was any defect in the machine; that he was not properly instructed, and that the accident was caused by any actionable negligence upon the part of the defendant. Upon the evidence it woxild appear that it was physically impossible for the upper die to fall, as claimed by him, leaving it fairly inferable that he himself caused it to descend by pressure upon the treadle. The judgment and order appealed from are, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event. Present—Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ. Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to'be settled on notice.