
    O'CONNOR v. BURGARD.
    (Supreme Court, Appellate Division, Fourth Department.
    January 16, 1907.)
    Action by Patrick J. O'Connor against llk~nry P. Burgard.
   PER CURIAM.

Defendant's exceptions sustained, and motion for new trial granted, with costs to the defendant to abide event. Held, that the evidence failed to establish actionable negligence on the part of the defendant, in that the accident which caused plaintiff's injury was not of such a cha'racter that an ordinarily pm dent person would have anticipated it as liabb to happen, and that there was no negligence at tributable to defendant in failing to guarc against the possibility of its occurrence.

KRUS]D, J., dissents. Order denying motior for new trial on the ground of newly discovere~ evidence affirmed, with costs.  