
    The Boston & Providence Dispatch Express Co. v. The Metropolitan Street Railway Co.
    (New York Common Pleas
    General Term,
    December, 1895.)
    In considering an appeal from a District Court, the Common Pleas is not concluded by the absence of a motion to dismiss the complaint at the close of the testimony. ,
    
    Motion for reargument of appeal from the District Court for the first judicial district.
    
      Morris IF. Mart, for motion.
    
      Menry A. lioMnson, opposed.
   Per Curiam.

No ground is presented upon this motion for which, within the provisions of rule 16 of the ■ General Term of this court, a reargument of the appeal may be had. The position of the witness Miller when he saw the accident, the opinion of Officer 'Labe as to the manner in which the plaintiff’s driver was driving, the testimony of the driver that he looked up and down the track and the fact that part of the wagon was upon the outer rail at the time of the collision are not decisive of the case. In considering the appeal from a District Court we are not concluded by the absence of a motion to dismiss the complaint at the close of the testimony.

Motion denied, with ten dollars costs. _

Present: Daly, Oh. J., Bischoff and Pbyob, JJ.

Motion denied, with ten dollars costs.  