
    NIMS, Respondent, v. MERRITT et al., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    May 12, 1903.)
    Action by Alvin F. Nims against Edwin A. Merritt, Jr., and others.
   PER CURIAM.

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event, upon the law and the facts, unless the respondent stipulates that said judgment be modified, by reducing the allowance for rock excavation, at $2.90 per yard, to 3,860 yards, and also by reducing the allowance for interest to an amount to be computed upon the balance, after the foregoing deduction, from June 26, 1899, the date when this action was commenced. In the event that said modification is stipulated, said judgment, as so modified, and the order, are affirmed, without costs of this appeal to either party.  