The Court affirmed the order,
Davies, Ch. J.,citing Stuart v. Mechanics’ & Farmers’ Bank, 19 Johns. 496, as decisive in favor of the plaintiffs’ position that the question should have been submitted to the jury. See also Bank of Utica v. Wager, 2 Cow. 712, 769; Flower v. Edwards, Couip. 112; Auriol v. Thomas, 2 Term R. 52; Winch v. Fenn, Id. note c. And in this the other judges concurred, except Peckham, J.,—who was of opinion that the case was distinguishable from Stuart *73v. Mechanics’ & Farmers’ Bank (above), and from Thomas v. Murray, 32 N. Y. 605,—and except J. C. Smith and Mokgah, JJ., who did not vote.
Order affirmed, and judgment absolute for plaintiffs, with direction that the supreme court ascertain and render judgment for damages, with costs.