Majority
Headnote
Appeal by the plaintiff from so much of an interlocutory judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 12th day of Movember, 1914, as overrules a demurrer to two defenses contained in the amended answer, and also an appeal by the defendant from so much of said judgment as denies defendant’s motion to dismiss the complaint.Upon the authority of Barry v. N. Y. Cen. & Hudson River R. R. Co. ( 92 N. Y. 289 ) and Lamphear v. N. Y. Cen. & Hudson River R. R. Co. (194 id. 172) (See, also, Erie R. R. Co. v. Burke, 214 Fed. Rep. 247 ), the judgment appealed from should be affirmed, without costs to either party, with leave to plaintiff to withdraw the demurrer upon payment of costs in the court below. Present — Ingraham, P. J., McLaughlin, Laughlin, Dowling and Hotchkiss, JJ. Ingraham, P. J., dissented on defendant’s appeal upon the ground that the complaint alleges that plaintiff was not at a crossing, but was walking “along ■one of defendant’s main tracks to a point to the westward of said Belmont avenue, in order to get to his home,” and in this position the defendant owed him no duty of care, and upon the further ground that it appears from the complaint that the proximate cause of the accident was the plaintiff’s catching his foot in the track, and not any negligence of the defendant in operating its road. Judgment affirmed, without costs to either party, with leave to plaintiff to withdraw demurrer on payment of costs in the court below.
Cases cited
- Barry v. New York Central & Hudson River Railroad 92 N. Y. 289 p. 940