
    John Steitz, Respondent, v. Benedict Gifford, Appellant.
   This is an appeal by the defendant-appellant from a judgment of the Supreme Court of Columbia county, in favor of the plaintiff and against the defendant in the sum of $4,470.50, and from an order denying the defendant’s motion to set aside the verdict and for a new trial. A careful examination of all of the evidence in this ease and of all the surrounding circumstances furnishes proof that the judgment is just and the amount of damages not excessive and that while the plaintiff’s loss was to some extent derived from the amount he had invested in his business his earnings were chiefly personal and that his injuries which prevented his engaging anybody to carry on were the direct result of the defendant’s negligence. The element of personal earnings predominates over a comparatively small investment of capital and does not make the measure of damage adopted by the trial court in error. The judgment and order appealed from should be affirmed, with costs. Judgment and order affirmed, with costs. Crapser, Bliss and Heffernan, JJ., concur; Hill, P. J., and MeNamee, J., dissent and vote to reverse, and for a new trial, on the ground that an improper rule of damages was applied.  