
    SPINELLA, Respondent, v. NEW YORK CITY RY. CO., Appellant.
    (Supreme Court, Appellate Term.
    June 26, 1905.)
    Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Pietro Spinella against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed conditionally.
    William E. Weaver, for appellant.
    Rosario Maggio, for respondent.
   PER CURIAM.

Judgment reversed, and new trial granted, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the amount of the judgment to the sum of_$300 and appropriate costs in the court below, in which event the judgment, as so modified, will be affirmed, without costs to either party of this appeal.

MacLEAN, J.

.(dissenting).

In view of the divergence of the testimony of the plaintiff and that of his witnesses, and of his sworn statement in his particulars and upon the stand, relative to the number of the car and the employes in charge, as well as for excessive damages, the judgment rendered herein in favor of the plaintiff should, in the interest of justice and in keeping with the remarks of the court in Streicher v. Third Ave. R. R. Co., 39 App. Div. 658, 57 N. Y. Supp. 716, be set aside, and a new trial ordered. Judgment reversed and new trial ordered, with costs to the appellant to abide the event.  