Keuhner v. Metropolitan Street Railway Co.

I dissent on the ground that the learned judge erred in refusing the request to charge the jury that there was no evidence in the case that the conductor of the car was negligent—Monroe v. Met. St. Ry. Co., 79 App. Div. 587, 590, 80 N. Y. Supp. 177-—of especial importance in a cause wherein the preponderance of evidence for the plaintiff was so dubious.

The case presents nothing more than the usual conflict of evidence in such cases. It was fairly submitted to the jury, and no reason appears why their verdict should be disturbed. The defendant having duly excepted to the granting of the extra allowance, the judgment must be modified by deducting the allowance. Standard Trust Company v. N. Y. C. & H. R. R. R. Co., 178 N. Y. 407, 70 N. E. 925.

Since the error in granting the allowance does not affect the merits, the judgment as modified will be affirmed, with costs to respondent.