
    BODETTE, Appellant, v. FOSTER-ARMSTRONG CO., Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    March 23, 1910.)
    Action by Nelson Bodette against the Foster-Armstrong Company.
   PER CURIAM.

Order (116 N. Y. Supp. 504) affirmed, with costs. Held, while the court was required by the employer’s liability act to submit the question of assumed risk to the jury, yet under that act it had power to set aside the verdict when rendered, if contrary to the evidence. It was not necessary to hold there was absolutely no evidence to support the verdict. The new trial was properly granted.

KRUSE, J., dissents, upon the ground that under the rule of the employer’s liability act the jury was warranted in finding that the defense of assumed risk was not made out, and the verdict upon that question is not contrary to the evidence.  