
    William H. Sherwood, App’lt, v. Tjark J. Houfman, Resp’t.
    Sup. Ct. 2 D.
    July 26, 1895.
    
      C. Gottschalk, for app’lt; Thos. E. Stewart, for resp’t.
   Dykman, J.

— This is an appeal by the plaintiff from a judgment of the county court of Kings county, in an action tried before the county judge and a jury. The action was originally commenced in a court of a justice of the peace, where the plaintiff recovered a judgment. Upon the appeal to the county court a new trial was had, and the plaintiff again recovered a judgment. Upon an appeal to the supreme court that judgment was reversed, and a new trial ordered, on the ground that the verdict was not warranted by the evidence. Upon the second trial in the county court, the evidence was substantially the same as on the first trial and the county judge directed a verdict for the defendant. From the judgment entered on that verdict, and from the order denying amotion for a new trial on the minutes of the court, the plaintiff has appealed. When this case was before us upon the former appeal, we decided that the plaintiff was not entitled to recover. As the testimony upon the second trial was substantially the same as upon the first, we take the same view of the case as we did before, when we decided that the plaintiff was not entitled to recover. The judgment and order denying a motion for a new trial must be affirmed, with costs.

Pratt, J., concurs. Brown, P. J., dissents on theground that the case was for the jury.  