
    First Department,
    February, 1939.
    (February 3, 1939.)
    Charles R. Stauffer, Appellant, v. Coca-Cola Bottling Co. of New York, Inc., Respondent.
   Per Curiam.

If the accident which caused plaintiff’s injury had occurred as testified by his witnesses, a cause of action would have been established. Accordingly, the judgment dismissing the complaint should be reversed. We are, however, of opinion that the verdict of the jury in favor of the plaintiff was against the weight of the evidence, which requires that there be a new trial.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Martin, P. J., O’Malley, Townley, G-lennon and Untermyer, JJ.; Martin, P. J., and Townley, J., dissent and vote to affirm.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.  