
    George S. Barnett, Appellant, v. Anheuser-Busch Agency, Respondent.
    First Department,
    December 19, 1913.
    Appeal—when judgment absolute by Appellate Term on conflicting evidence unwarranted—action for value of horse injured by automobile — evidence.
    Where on appeal to the Appellate Term controverted questions of fact upon conflicting evidence both as to negligence and contributory negligence are presented, judgment absolute is unwarranted.
    Action to recover the value of a horse injured in a collision with an automobile truck. Held, that a verdict for the plaintiff was not against the weight of evidence, and should not have been set aside.
    Appeal by the plaintiff, George S. Barnett, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of .New York on the 11th day of March, 1913, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered upon the verdict of a jury for $400, and giving judgment absolute for the defendant.
    
      Herbert C. Smyth of counsel [Harry A. Gordon with him on the brief], Wellman, Gooch & Smyth, attorneys, for the appellant.
    
      Edwin Blumenstiel of counsel [Milton M. Blumenthal with him on the brief], Blumenstiel & Blumenstiel, attorneys, for the respondent.
   Clarke, J.:

This action was brought to recover the value of a horse, owned by the plaintiff, so' badly injured in a collision with an automobile truck belonging to the defendant that it had to be shot. The case has been twice tried in the Municipal Court without a jury. The plaintiff recovered a judgment for $400 upon each trial. Both of said judgments were reversed by the Appellate Term. (134 N. Y. Supp. 734.) The case was again tried with a jury, additional evidence being produced, including that of an eye witness of the accident who was not available at either of the previous trials. The jury rendered a verdict for $400 for the plaintiff. Upon appeal, this third judgment was reversed by the Appellate Term by a divided court, and judgment absolute ordered for the defendant. (80 Misc. Rep. 151.) This appeal is by leave of the presiding justice.

As controverted questions of fact upon conflicting evidence both as to the defendant’s negligence and the freedom from negligence of the driver of the horse were presented, the direction for judgment absolute by the Appellate Term was unwarranted. Upon careful consideration of the whole record, we are of the opinion that the verdict for the plaintiff was not against the evidence or the weight thereof and should not have been set aside, and that there were no legal errors committed which required reversal.

The determination appealed from should be reversed and the judgment of the Municipal Court reinstated, with costs to the appellant in this court and at the Appellate Term.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Determination reversed and judgment of Municipal Court reinstated, with costs to appellant in this court and at the Appellate Term. Order to be settled on notice.  