
    James Polly, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
   After hesitation we conclude not to disturb the action of the court that set aside its dismissal of the plaintiff at the close of his case, on the ground of contributory negligence as matter of law, and directed a new trial. We do not intend in any way to fetter the action of the court upon the new trial. We think it proper to state that in our opinion there is no force in the contention of the learned counsel for plaintiff that the defendant was under any obligation to afford a safe way across the street to the plaintiff, save as that was implied in its working of its cars. Order unanimously affirmed, with costs. Present — Jenks, P. J., Mills, Putnam, Kelly and Jaycox, JJ.  