Majority
—This case appears to have been twice tried. Upon tiie first-trial a nonsuit was directed, which was set aside by the general term of the-Fourth department, and a new trial ordered. Upon the second trial, the case was submitted to the jury, and resulted in a verdict for the plaintiff. The only question to which our attention has been directed upon this appeal relates to the contributory negligence of the plaintiff’s intestate. We are unable to discover that the evidence upon the second trial varies in any appreciable degree-from that which was offered upon the former trial, so far as this question is-concerned ; nor does the appellant’s counsel make any such contention upon the argument. In view, therefore, of the decision of the general term, it cannot be said that any error was committed by the learned trial justice in submitting this question to the jury. Judgment and order appealed from affirmed^ with costs, upon the motion of Hardin, P. J., delivered at the general term,, and reported in 88 Hun, 196 ; 34 N. Y. Supp. 714 .