
    (March 19, 1937.)
    Emil Frey, Appellant, v. M. G. M. Realty Co., Inc., Defendant, Impleaded with Manischewitz Broadway Central Hotel, Inc., Respondent.
   Per Curiam.

We are of the opinion that the verdict was properly set aside. While the action was tried and submitted on the theory of negligence, the verdict on that question is against the weight of the credible evidence.

The order appealed from should be affirmed, with costs. Present —■ Martin, P. J., McAvoy, O’Malley, Townley and Glennon, JJ.; O’Malley, J., dissents and votes to reverse and reinstate the verdict.

O’Malley, J. (dissenting).

I dissent and vote to reverse the order and reinstate the verdict. The case was tried and submitted to the jury upon the theory of negligence, not upon the theory of assault, which was made the basis of the decision setting aside the verdict. *

Order affirmed, with costs and disbursements.  