
    John Murray, as Administrator of the Estate of John Murray, Deceased, Respondent, v. Jacob Rosenheim, Appellant.
    
      Negligence —; motor vehicles — boy struck by motor vehicle while crossing street — erroneous charge as to applicability of provision of General Highway Law requiring operator of motor vehicle to give signal upon approaching pedestrian in street.
    
    
      Murray v. Rosenheim, 212 App. Div. 858, reversed.
    (Argued October 22, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 13, 1925, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned throught the negligence of defendant. Intestate while crossing Second avenue in the borough of Manhattan at about five p. m. on a dark, rainy and foggy day toward the end of November, was struck by a motor truck owned by defendant and operated by his employee and died from the injuries sustained. Defendant contended that the court erred in charging the jury that subdivision 2 of section 13 of the General Highway Traffic Law is applicable to this case; that at the time of the accident .the chauffeur was not engaged in his master’s business or acting within the course of his employment and that the plaintiff’s intestate was chargeable with contributory negligence.
    
      George F. Hickey and William Butler for appellant.
    
      Keron F. Dwyer for respondent.
   Judgments reversed and new trial granted, costs to abide event, on dissenting opinion of Clarke, P. J., below.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Andrews and Lehman, JJ. Absent: Crane, J.  