Opinion
January 10, 1962
Appeal from the Erie County Court.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Judgment unanimously reversed on the law and a new trial granted, with costs to the appellants to abide the event. Memorandum: Implicit in our former decision ( 8 A.D.2d 768) was the holding that the evidence presented a question of fact which required submission to the jury. The evidence introduced upon the second trial was substantially the same as that upon the first trial and the case should have been submitted to the jury.