¶1—Upon the evidence contained in this record, the case is not altered in favor of the defendant from the case presented to this court on the former appeal, our decision of which is reported in 115 N. Y. 65. We then held that the evidence raised only a question of law, which we decided in favor of the plaintiff.
¶2If the views of this court upon such questions are to he followed, a plain case in favor of the plaintiff was again made out on the new trial before the referee, and judgment in favor of the plaintiff should therefore have been given. Notwithstanding our former decision, the referee, upon evidence which did not alter the defendant’s case in any aspect to his advantage, dismissed the complaint of the plaintiff, when he ought to have granted judgment in his favor.
¶3For this clear error the judgment should again be reversed, and a new trial ordered, with costs to abide the event.
¶4All concur.