Upon a reading of the record it cannot be said as a matter of law that the evidence does not present a question of fact which must in the first instance be submitted to the jury. The character of the negotiations between the parties, and defendant’s consequent access to plaintiff’s works, together with the basic similarities in the structures of the stories of plaintiff and those produced by defendant, are sufficient to require that the case be submitted to the jury.

The judgments should be reversed and a new trial granted, with costs to abide the event. (See 282 N. Y. 622.)

Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ., concur; Lehman, J., dissents; O’Brien, J., taking no part.

Judgments reversed, etc.