
    WILD v. ERIE R. CO.
    (No. 7354.)
    (Supreme Court, Appellate Division, First Department.
    May 28, 1915.)
    Appeal from Special Term, New York County. Action by Jesse Wild against the Erie Railroad Company. From so much of an interlocutory judgment as overruled demurrer to two defenses contained in the amended answer, plaintiff appeals; and from so much thereof as denied a motion to dismiss the complaint, defendant appeals.
    Affirmed.
    John J. Finn, of New York City, for plaintiff.
    Russel S. Coutant, of New York City, for defendant.
   PER CURIAM.

Upon the authority of Barry v. N. Y. Cent. & Hudson River R. R. Co., 92 N. Y. 290, 44 Am. Rep. 377, and Lamphear v. N. Y. Cent. & Hudson River R. R. Co., 194 N. Y. 172, 86 N. E. 1115 (see, also, Erie R. R. Co. v. Burke, 214 Fed. 247, 130 C. C. A. 617), the judgment appealed from should be affirmed, without costs to either party, with leave to plaintiff to withdraw the demurrer, upon payment of costs in the court below. Order filed.

INGRAHAM, P. J.,

dissents on defendant’s appeal, upon the ground that the complaint alleges that plaintiff was not at a crossing, but was walking “along one of the defendant’s main tracks at a point to the westward of the said Belmont avenue, in order to get to his home,” and in this position the defendant owed him no duty of care, and upon the further ground that it appears from the complaint that the proximate cause of the accident was the plaintiff’s catching his foot in the track, and not any negligence of the defendant in operating its road.  