Judgment and order reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. Respondent concedes that because of the decision in Resigno v. Jarka Co., Inc. (248 N. Y. 225, 233) the judgment must be reversed. Plaintiff founds his right of action not only upon the act of Congress commonly known as the Jones Act (act of June 5,1920, 41 Stat. chap. 250, pp. 988, 1007, § 33), but upon common-law liability. (Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436.) Since there is no liability under the Jones Act (Resigno v. Jarka Co., Inc., supra, decided since this case was tried), the plaintiff is not estopped and precluded from proving his case under the common law, if he has one, under the allegations of his complaint. (Reed v. Davis, 249 N. Y. 35; Schenck v. State Line Telephone Co., 238 id. 308.) Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.