William E. Martin, Appellant, v. New York and Queens Electric Light and Power Company, Respondent

William E. Martin, Appellant, v. New York and Queens Electric Light and Power Company, Respondent. [MAJORITY] Motion to modify judgment of reversal and reinstating verdict for plaintiff by providing instead for a new trial denied. The trial court entertaining defendant’s motion for a new trial on the minutes on the grounds specified in section 999 of the Code, granted the motion and dismissed the complaint. The ground for dismissal was that the man operating defendant’s automobile was not at the time acting for the defendant, and this was the only question argued before this court on the appeal. (See 182 App. Div. 932.) We thought that as to this a question of fact was presented, and that the evidence sustained the verdict of the jury for the reasons stated in the memorandum filed with the decision. If there was any question whether the verdict in other respects was against the evidence, or any other matter involved in the decision of the motion, the decision of this court was in favor of the plaintiff. We, therefore, reinstated the verdict. Since the decision of the appeal the learned county judge denied defendant’s motion for a new trial upon the ground of newly-discovered evidence, and his order has been affirmed. We think there is no reason for modifying the judgment of reversal and reinstatement of the verdict for plaintiff. (See Mundy v. Levy Brothers Realty Co., ante, p. 467, decided herewith). Present — Jenks, P. J., Thomas, Blackmar, Kelly and Jayeox, JJ.