Keenan v. New York, L. E. & W. R. Co.

When this case was before this court before, we reached the conclusion that the exceptions taken by appellant should be sustained, and to that end reversed the judgment and order appealed from. A careful examination of the whole case, and an attentive consideration of the arguments submitted, fail to convince our mind that in the former decision we overlooked a controlling distinction. We still remain in the opinion that the judgment appealed from should be reversed upon the exceptions taken. We perceive no just reason why our decision in this regard should not be the subject of review by the court of appeals. Under the former decision, and the order entered thereon, this result could not be reached. To this end, and for this purpose, we have examined the facts of the case, and reach the conclusion that no reason exists for disagreeing with the determination of the court below. The order of the court will therefore be that the order denying the motion for a new trial be affirmed upon the facts, and the judgment appealed from be reversed upon the exceptions, with costs to abide the event. Williams v. Railroad Co., 127 N. Y. 643 .