
    Justin F. Mohr, as Administrator of the Estate of Dave D. Revette, Deceased, Respondent, v. New York Centrad Railroad Co. et al., Appellants.
   Memorandum: The motion to dismiss the complaint made at the close of the evidence by defendant railroad company should have been granted. Upon all the proof the jury by no rational process could have based a finding that this defendant was negligent (cf. Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4401.14). The jury returned a verdict against all defendants of $35,000 “plus expensesThe court refused to accept the verdict and with precision instructed the jury that the “ expenses ” totaled $3,491.25. Plaintiff’s counsel concurred in the instruction. In eight minutes the jury returned with a verdict of $45,000. Upon all the proof we find that plaintiff’s recovery should he $38,491.25. (Appeal from judgment of Onondaga Trial Term, in an action for damages for wrongful death.) Present — Bastow, J. P., Henry, Del Veechio and Marsh, JJ.  