
    Emil Bertsch, Respondent, v. George Smith, Appellant.
   Judgment and order of the City Court of White Plains reversed on the law and the facts and a new trial ordered, costs to appellant to abide the event, on the ground that the determination of the trial justice was against the weight of the evidence. Granting plaintiff the most favorable inferences to be drawn from the facts, it appears that plaintiff going from fifteen to twenty miles an hour, when ten feet away from Cohawney road, observed defendant fifty or sixty feet from Brewster road. Plaintiff did not know at what speed defendant was going. This made it impossible for him to determine that if he continued there would not be a collision. Plaintiff proceeded across Cohawney road without paying any further attention to defendant until the time of the collision. According to plaintiff, he had gone about thirty-two feet, and defendant about fifty-five to sixty-five feet, from the time plaintiff first saw defendant up to the time of the collision. Defendant had the right of way. Defendant failed to move to dismiss at the end of the whole case. Under these circumstances, the finding that plaintiff was free from contributory negligence is against the weight of the evidence. Lazansky, P. J., Kapper, Carswell and Davis, JJ., concur; Hagarty, J., dissents and votes to affirm.  