
    Peter McCarthy, Pl’ff and Resp’t, v. Thomas H. Thorn, Def’t and App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed June 29, 1889.)
    
    Master and servant—Unsafe appliances—When complaint properly dismissed.
    Where there is some evidence given on the part of the plaintiff at the trial, that would warrant the jury in finding that the defendant negligently-furnished to the plaintiff an appliance for his use, and that he was injured without fault on his part, while using such appliance, the refusal of the trial court to dismiss the complaint, was no error.
    Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury, and from an order denying a motion made upon the minutes, ‘1 to set aside the verdict and grant a new trial upon the exceptions taken on the trial, because the verdict is for excessive damages and is contrary to the evidence and is contrary to law.”
    
      Robert A. B. Dayton, for app’lt; Geo. G. Tabell, for resp’t.
   Truax, J.»

The action was brought tó recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant. The only question in the case is the one presented by the defendant’s exception to the refusal of the court to dismiss the complaint. I am of the opinion that there was some evidence in the case that would warrant the jury in finding that the defendants negligently furnished to the plaintiff an appliance for his use, and that he was injured without fault on his part while using such appliance.

The judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J.

The judgment and order appealed from should be affirmed, with costs.  