
    Mary E. Bruck, as Executrix of Frank J. Bruck, Deceased, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
    
      Bruch v. IV". Y C. & H. R. R. R. Co., 165 App. Div. 631, reversed.
    (Argued December 5, 1916;
    decided December 28, 1916.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 10, 1914, reversing a judgment in favor of defendant entered upon a verdict and granting a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of the defendant, his employer. The testator, while employed as a fire cleaner in one of defendant’s round houses, was run over by an engine and died from the injuries received. The answer denied any negligence on the part of the defendant; alleged that the accident which caused the death of plaintiff’s • intestate was occasioned by reason of his own negligence or the negligence of a fellow-servant, and that his death was due to one of the risks incident to his employment, obvious, well known and assumed by him, and further alleged that the cause of action, in so far as the sole next of kin was concerned, had been satisfied and released.
    
      Amos Van Etten for appellant.
    
      N. Frank O’Reilly, John T. Loughran and William H. Grogan for respondent.
   Order of Appellate Division reversed and judgment of Trial Term affirmed, on the dissenting opinion of Smith, P. J., below, with costs in the Appellate Division and in this court.

Concur: Willard Bartlett, Oh. J., Hiscock, Chase, Collin, Cuddebaok, Hogan and Pound, JJ.  