
    First Department,
    July, 1932.
    Albert Alexander and Others, Respondents, Appellants, v. American League Baseball Club of New York, Appellant, Respondent.
   Per Curiam.

The order setting aside the jury’s finding of contributory negligence on the part of the plaintiffs as being against the weight of the evidence was fully warranted. In fact, it might be properly said that on the record before us the plaintiffs were free from negligence as a matter of law. However, we choose to reserve final judgment upon this question until the record is again presented, when we will have the benefit of any new or additional evidence that may be adduced. We are of opinion, too, that the question of the defendant’s negligence was for the jury and that their finding upon this issue was justified. They were entitled to find that the defendant, under all the circumstances disclosed, had failed to furnish an adequate exit at the place of the happening of the accident; failed to furnish a sufficient number of policemen or guards to properly handle the large crowd which had gathered in this particular section of the bleachers and had also been guilty of other acts and omissions which contributed to the injuries sustained by the plaintiffs. However, inasmuch as there must be a new trial upon the issue of plaintiffs’ negligence, the interests’of justice and orderly procedure require a retrial of the issue of the defendant’s negligence. The order appealed from, therefore, properly set aside the verdict in its entirety. Evidence that no prior accident of a like nature had previously occurred would be competent upon proof that the surrounding facts and circumstances on prior occasions were the same, or substantially the same. (Brady v. Manhattan Railway Co., 127 N. Y. 46; Gustafson v. Young, 91 App. Div. 433; Ryan v. Cortland Carriage Goods Co., 133 id. 467; Lane v. City of Buffalo, 232 id. 334; Polemenakos v. Cohn, 234 id. 563.) It follows that the orders appealed from should be in all respects affirmed, without costs. Present — Finch, P. J., Merrell, Martin, O’Malley and Townley, JJ.; Merrell, J., dissents and votes to reverse and reinstate verdict. Orders affirmed, without costs.  