Majority
Headnote
Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 12th day of August, 1915, dismissing the complaint, and from an order entered in said clerk’s office on the 11th day of August, 1915, denying a motion for a new trial.The plaintiff showed that cold weather lessened the resistance of the cast iron snap, "but did not show that the snap in question had been subjected to cold sufficient for that purpose on the day in question or before that. Facera, to the question whether the weather, was cold on the morning of Rovember 23, 1914, answered, “ Some.” Whether it was cold enough to affect the snap injuriously does not appear. The learned counsel for the plaintiff urged that the frequent participation of the court in the trial was disconcerting and prejudicial. But it did not preclude the counsel from showing a temperature that rendered the use of the bit improper. Hence, assuming that the jury could infer that the snap broke and caused the injury, negligent use of it on the day in question was not shown. The judgment and order should be affirmed, with costs. Present—Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ. Judgment and order unanimously affirmed, with costs.