
    Frank Walton, Resp’t, v. Parke Godwin, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Appeal—Re-argument.
    The former decision on this appeal, 38 N. Y. State Rep., 886, reaffirmed and re-argument denied.
    
      Motion for re-argument
    
      W. W. Badger, for motion; Nelson Smith, opposed.
   Van Brunt, P. J.

Motion denied.

Daniels, J.

This case was examined both as' to the facts and the law. Neither was in any respect overlooked in reaching the conclusion mentioned in the opinion, which was considered to be the only disposition that could regularly be made of it. Upon another 'trial the difficulties presented may be avoided, and it is the right of the defendant that they should be before he can be held liable in the action. The court proceeded upon all the charges in which the evidence tended to show that-the report was untruthful in directing the jury that this part of the case had been established. It was wholly withdrawn from the jury. In "great part that was an erroneous assumption. And it can only be corrected by another trial, when the charges depending upon the conflicting evidence can be excluded, or else submitted to the jury to be determined by them.

The motion should be denied, with costs.  