In each case: Judgment of Appellate Division reversed and the action remitted to that court for determination upon questions *Page 723 of fact there raised (Civ. Prac. Act, § 606), with costs to abide the event, on the ground that in each case the evidence presents questions of fact as to the defendant's negligence, and in the first case as to freedom from contributory negligence on the part of plaintiff's intestate.

Concur: LOUGHRAN, Ch. J., CONWAY, DESMOND and DYE, JJ. LEWIS and FULD, JJ., dissent in the first case upon the ground that the driver of the automobile was guilty of contributory negligence, as a matter of law, which was imputed to the plaintiff's intestate. (Gochee v. Wagner, 257 N.Y. 344.)

In each case: Judgment of Appellate Division reversed and the action remitted to that court for determination upon ques*723tions of fact there raised (Civ. Prac. Act, § 606), with costs to abide the event, on the ground that in each case the evidence presents questions of fact as to the defendant’s negligence, and in the first case as to freedom from contributory negligence on the part of plaintiff’s intestate.