Majors v. Mirsky

Order appealed from, which grants a new trial on the judge’s minutes under section 649 of the Civil Practice Act, unanimously affirmed, with costs and disbursements. On the retrial, plaintiff’s evidence that the light was not burning at 6:00 P.m. and defendant’s evidence that it was burning at 6:30 P.M. should both be excluded. The accident happened at 4:00 p.m. This .evidence concerns a physical fact too easily susceptible of alteration after the accident to have probative force of the condition at the time of the accident. Present — Martin, P. J., Cohn, Callahan, Peck and Van Voorhis, JJ.