I am inclined to the. conclusion that there was evidence upon which the jury might have found defendant’s negligence and plaintiff free from negligence,- and so I favor a new trial. (See Maxim v. Town of Champion, 50 Hun, 88; S. C. affd., 119 N. Y. 626; Warner v. Village of Randolph, 18 App. Div. 461; Lane v. Town of Hancock, 142 N. Y. 515.) •