Elliott v. New York Rapid Transit Corp. , 41 N.Y.S.2d 255 ( 1943 )

Johnston, Adel and Lewis, JJ., concur; Close, P. J., and Carswell, J., concur as to dismissal of the appeal from the order but dissent as to affirmance of the judgment and vote to reverse and to grant a new trial on the ground that the record presents a question of fact for determination by the jury as to defendant’s negligence and plaintiff’s intestate’s freedom from contributory negligence.