
    Max LIEBOWITZ, an infant, etc., Respondent, v. The LONG ISLAND RAILROAD COMPANY, Appellant.
    (Supreme Court, Appellate Division, First Department,
    February 25, 1916.)
    Appeal from Trial Term, New York County.
   LAUGHLIN, J.

The cause of action as alleged is on an implied license, which was not proved, but the case was left to the jury upon the claim of an express invitation, which was not alleged. I am also of opinion that the findings of the jury that the plaintiff was free from contributory negligence, and that the defendant was negligent, are against the weight of the evidence. The judgment and order appealed from should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. Order filed.

CLARKE, P. J., concurs.

SMITH, J.,

concurs, being further of the opinion that the proof of the defendant’s negligence was not sufficient to go to the jury.

DOWLING and DAVIS, JJ., dissent, and vote for affirmance.  