
    Elias Warn, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Appeal—Non-tjn animo us Affirmance. A judgment of the Appellate Division reciting that one of the judges sat but did not vote, that the remaining four judges concurred, and that a judgment, which was rendered in an action for personal injuries, “ be affirmed,” is not a unanimous affirmance, precluding a review thereof by the Court of Appeals.
    Reported below, 50 App. Div. 621.
    (Submitted June 18, 1900;
    decided June 22, 1900.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 27, 1900, affirming a judgment in favor of plaintiff entered upon a verdict.
    
      This is a motion to dismiss the appeal on the ground that it is an appeal from a judgment unanimously affirming a judgment in an action uo recover damages for personal injuries.
    The action has been three times tried, and has been once before this court. (151 E. YL 109.) The plaintiff was a car inspector in the employ of the defendant, and was injured by having his head squeezed between the bumpers of cars while he was inspecting them. The negligence claimed is that the defendant failed to promulgate and enforce rules for the protection of car inspectors while in the performance of their duties.
    The original judgment of the Appellate Division recited that its decision was unanimous. That court thereafter granted leave to the defendant to appeal to the Court of Appeals, but upon the condition that no questions as to the correctness of the exceptions taken to the testimony adduced upon the trial, or to the charge or refusals to charge of the trial judge, should be raised in this court; the reason of such restriction being that no such questions were raised or considered in the Appellate Division.
    The plaintiff’s attorneys heretofore served upon the attorneys for the defendant papers upon a motion to dismiss the appeal, which motion was noticed for hearing before this court on June 4th. The hearing of this motion was stayed, by an order made by Judge Vann, to give the defendant an opportunity to apply to the Appellate Division for an amendment of its judgment. That application was made and granted, and the judgment of the Appellate Division now, in part, recites: “ Ordered, Justice McLennan sitting, but not voting, and the remaining four judges concurring, that the said judgment so appealed from be affirmed.”
    Hiscook, Doheny, Williams da Gowie for appellant.
    
      Jenney ds Marshall for respondent.
   Werner, J.

This is not a unanimous affirmance. The cases of Harroun v. Brush El. Light Co. (152 N. Y. 212) and McDonnell v. N. Y. C. & H. R. R. R. Co. (159 N. Y. 524) are not in conflict with this decision. In the former case, the record recited four' justices as sitting, and they all concurred; in the latter case, all the justices composing the court heard the argument, but one of them died before it wrs decided. In this case one of the sitting justices did not vote, although he had the right to do so.

The motion should he denied, with ten dollars costs.

Parker, Ch. J., O’Brien, Bartlett, Yann, Landon and Cullen, JJ., concur.

Motion denied.  