(dissenting). The court charged the jury: “ The important question for you to determine in this case is whether the car was left as testified to by the defendant and the young boys who have been called before you; because, if so, then your verdict will be for the defendant.” No question of liability under Maloney v. Kaplan (233 N. Y. 426) was left to the jury and no adequate instruction given to the jury to permit it to render any verdict under the principle there laid down. Under the charge, the only basis for this verdict was that the defendant left his car with the engine running and with the brakes improperly set. There was no evidence whatever to sustain such a finding.
The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event.
McAvoy, J., concurs.
Judgment affirmed, with costs.