concurs in the reversal of the judgment, but dissents as to the dismissal of the complaint, and votes to grant a new trial, with the following memorandum: The negligence of the defendant is established. The sole question remaining is whether the plaintiffs, by reason of such negligence, suffered provable damages, i.e., the difference in the plaintiffs’ pecuniary position from what it should have been had the defendant acted without negligence (Flynn v. Judge, 149 App. Div. 278, 280). Hence, it was necessary that the pleadings and transcript of testimony in the landlord’s action should be received in evidence. Evidence of payment under a settlement may under certain circumstances be admitted as a proper element of damage (Wille v. Maier, 256 N. Y. 465), since an injured party has the duty of mitigating damages (9th Ave. & 42nd St. Corp. v. Zimmerman, 217 App. Div. 498). In an action based on negligence “ Several acts may occur to produce a result, one or more being the proximate cause ” (Carlock v. Westchester Lighting Co., 268 N. Y. 345, 349). Proximate cause presents a question of fact for the trier of the fact, where varying inferences may be drawn (Lopez v. City of New York, 4 A D 2d 48, 52, affd. 4 N Y 2d 738). Consequently, a new trial is necessary.