Order *797affirmed, with costs. Cochrane, P. J., Van Kirk and Whitmyer, JJ., concur; McCann and Davis, JJ., dissent and vote for reversal of the order and to reinstate the verdict, on the ground that there was a disputed question of fact as to the negligence of both parties, which was fairly submitted to the jury, and this is the second verdict for the defendant, and it should be given finality. (Gutman v. Weisbarth, 194 App. Div. 351, 354; Dashnau v. City of Oswego, 204 id. 189.)