
    Third Department,
    November, 1948.
    (November 14, 1945.)
    Paul Hetman, as Administrator of the Estate of Maurice Hetman, Deceased, Appellant, v. New York Central Railroad, Respondent.
   Lawrence, J.

(dissenting). I dissent. The order and judgment appealed from were based upon a motion by the defendant to dismiss the complaint upon the merits. This motion was granted at the close of the plaintiff’s case.

About 5:45 a.m. on the morning of September 17,1941, plaintiff’s intestate was found, lying between the two main line tracks of the defendant railroad, about 580 feet south of the Troy-Menands bridge. He had been last seen at the easterly approach to such bridge shortly before 1:00 a.m. on the morning referred to. There he alighted from an automobile and must have proceeded along the tracks. The circumstances would justify an inference that he was struck by a train of the defendant. Deceased must have walked southerly along defendant’s railroad tracks for a distance of 'about 580 feet before he was struck.

There is some evidence that there was a path, which led to a spring on the east side of defendant’s right of way, across the tracks near the place where deceased was found. The evidence is barren of anything to show that deceased was crossing the tracks at a time when it might be inferred he was hit by a train.

The order and judgment appealed from should be affirmed.

Hill, P. J., Heffeman and Brewster, JJ., concur in decision; Lawrence, J., dissents in opinion in which Foster, J., concurs.

Judgment reversed on the law and facts, and new trial granted, on the authority of Zambardi v. South Brooklyn Ry. Co. (281 N. Y. 516). [See 270 App. Div. 781.]  