
    SMITH, Respondent, v. UTICA KNITTING CO., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    October 27, 1903.)
    Action by George C. Smith, as administrator, against the Utica Knitting Company.
   PER CURIAM.

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein, upon the ground that the evidence does not show that plaintiff’s intestate was free from contributory negligence, and the further ground that the plaintiff’s intestate assumed the risk.

WILLIAMS and NASH, JJ„ vote for reversal upon the law and the facts, upon the ground that the finding of the jury that there was absence of contributory negligence was contrary to the evidence, and the finding that the defendant was guilty of negligence was contrary to the evidence, because the defendant, under the circumstances of the case, owed the intestate no duty to have its elevator in different condition from what it was; he having assumed the risk thereof.

STOVER, J., not voting.  