(dissenting). A former judgment in favor of plaintiff was reversed as against the weight of evidence (90 N. Y. Supp. 390). Upon a second trial, upon what appears to be substantially the same evidence, a jury has again ren*629derecl a verdict in plaintiff’s favor. The case has thus been passed upon twice by a jury with the same result each time. The jury had the advantage of seeing the witnesses and ob-. serving their manner of testifying, and it may well be that the printed case does not adequately represent the effect produced by the oral evidence. I see no reason to believe that any different result will be arrived at upon a third trial, and the verdict is not so absolutely without evidence to support it as to require a second reversal.
In my opinion the judgment should be affirmed, with costs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.