Phillipson v. Gallagher — 94 N.Y.S. 1160

Majority

p. 1160

PHILLIPSON et al., Appellants, v. GALLAGHER, Respondent.

(Supreme Court, Appellate Term.

June 26, 1905.)

Headnote

Appeal from City Court of New York, Special Term. Action by Samuel Phillipson and another against Patrick Gallagher. From an order setting aside a verdict for plaintiff and granting a new trial, plaintiffs appeal.

Affirmed.

Adolph Block, for appellants.

Olney & Comstock, for respondent.

In my opinion the plaintiff failed in sustaining the burden of proof that the break occurred by reason of defendant’s negligence. The proof was at least as convincing that it resulted from a latent defect as it was that it resulted from freezing. The order appealed from should be affirmed, with $10 costs and disbursements.

MacLEAN, J., concurs. DUGRO, J., concurs in result.