
    SPLAIN, Appellant, v. UTICA GAS & ELECTRIC CO., Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    January 26, 1904.)
    Action by John Splain against the Utica Gas & Electric Company.
   PER CURIAM.

Judgment reversed, and new trial ordered, with costs to the appellant to abide event. Held, that the question of defendant’s negligence was one of fact for the jury; also held, that the plaintiff was not barred from recovery by reason of the fact that he did not own the fee of the land upon which the tree' stood. See Donohue v. Keystone Gas Co. (decided by this court at present term) 85 N. Y. Supp. 478.  