Majority
Headnote
On motion of defendants for re-argument or for leave to appeal from the affirmance of a judgment for plaintiff. Motion denied. For former decision, see 148 N. Y. Supp. 1125 . Clarence M. Bushnell, of Buffalo, for the motion. Norbert C. Kropp, of Buffalo, opposed.The two grounds upon which the appellants' counsel bases his application for a reargument are: (1) That it was error to receive in evidence plaintiff's testimony as to his physician's declarations concerning the condition of the bones of his foot; and (2) that plaintiff failed to prove actionable negligence on the part of the defendants. These grounds were fully considered by the court on the decision of the appeal, and the court were of opinion that as to the first ground, while it was error to receive such declarations, the error was not so pi-ejudicial as to require a reversal of the judgment, and, as to the second, that the evidence was sufficient to require the submission of the question of defendant's negligence to the jury as one of fact.