
    CESA v. JOLINE et al.
    (Supreme Court, Appellate Term.
    March 17, 1909.)
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by Louisa Cesa against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.
    Argued before GILDERSLEEVE, P. J.. and MacLEAN and DAYTON, JJ.
    Anthony J. Ernest, for appellants.
    Hieronimus A. Herold, for respondent.
   PER CURIAM,

judgment affirmed, with costs.

MacLEAN, J.

(dissenting). The testimony of the physician, who only examined plaintiff on the day of the trial, some two or three months after the accident, as to her condition then, was improperly received over the objection and exception of the defendants, as was also his testimony in response to a hypothetical question, faulty in form and assuming facts not shown to exist. This testimony favored the plaintiff and was naturally prejudicial to the defendants, and was persistently elicited despite query Of the court. The case should therefore be sent back for a new trial.  