Majority
p. 656Ida M. Tooley, as Administratrix, etc., of Arthur A. Tooley, Deceased, Respondent, Appellant, v. The State of New York, Appellant, Respondent. (Claim No. 21709.)[1]
Judgment affirmed, without costs of this appeal to either party. We think the question of contributory negligence was one of fact because the deceased was acting under the direction of his employer and might, therefore, rely upon the latter’s watchfulness. All concur, except Sears, P. J., and Edgeomb, J., who dissent and vote for reversal on the law and facts and for dismissal of the claim on the ground that the refusal to find defendant’s requests Nos. 9 and 10 was contrary to and against the weight of the evidence. Present ■— Sears, P. J., Crouch, Edgeomb, Thompson and Crosby, JJ.