
    JENSEN v. O’ROURKE ENGINEERING & CONSTRUCTION CO.
    (Supreme Court, Appellate Term.
    April 8, 1910.)
    Appeal from City Court of New York, Trial Term. Action by Jesper M. C. Jensen against the O’Rourke Engineering & Construction Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Reversed and dismissed.
    James B. Henney, for appellant.
    Appell & Taylor (George H. Taylor, Jr., of counsel), for respondent.
   PER CURIAM.

The facts of this ease are stated in the opinion of this court reported in 117 N. Y. Supp. 905. Upon the second trial the plaintiff went a little further in testifying in support of his own case than he did upon the first trial. Even if we consider the additional testimony now presented for the first time, it is evident from a review of the whole record that the plaintiff was guilty of contributory negligence as a matter of law. Judgment reversed, and complaint dismissed, with costs.

GAYEGAN, J., dissents.  