
    CAREY, Respondent, v. BEACHEY, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    January 5, 1904.
    Action by John C. Carey against Noah C. Beachey.
   PER CURIAM.

Judgment and • order reversed, and new trial ordered, with costs to the appellant to abide event, upon questions of fact, unless tbe plaintiff stipulates that the judgment may be modified by striking therefrom, as of the date of the rendition of the same, the sum of $129.75, with interest tbereon from May 30, 1902, in which case the judgment, as so modified, and the order, are affirmed, without costs of this appeal to either party. Held that, the trial justice having charged, in effect, that the plaintiff could not recover the value*of the plum trees, if they were affected with “black heart,” as claimed by defendant, the verdict of the jury, necessarily involving the finding that they were not so affected, was against the weight of the evidence.  