
    James M. Elliott, Jr., Appellant, v. Martin S. Paine, Respondent.
    
      Elliott v. Paine, 148 App. Div. 893, reversed.
    (Argued November 25, 1913;
    decided December 16, 1913.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 28, 1911, affirming a judgment in favor of defendant entered upon a verdict directed by the court in an action to recover for an alleged breach of contract.
    
      John D. Fearhake and Anson Bearcl for appellant. '
    
      Edward W. Hatch and Charles J. Hardy for respondent.
   Judgment reversed and new trial granted, costs to abide event, on the ground that the positive testimony of the plaintiff and Brockway presented a question for determination by the jury; no opinion.

Concur: Cullen, Oh. J., G-ray, Willard Bartlett, Cuddeback, Hogan and Miller, JJ. Absent: Werner, J.  