¶1I concur in result. The rule in Dobie v. Armstrong (160 N Y. 584) has been modified by McDonald v. Metropolitan Street R. Co. (167 id. 66), as pointed out by this court in the recent case of Philips v. Philips (77 App. Div. 113), wherein we held : “ Upon the law as now authoritatively laid down by the Court of Appeals, therefore, a verdict cannot be directed for a plaintiff or defendant, no matter how great the weight or preponderance of evidence may be in his favor, where, on the other side, evidence has been given which presents an issue of fact, and upon which the jury could properly proceed to find a verdict.”
¶2We then discussed the evidence presented by the plaintiff and reached the conclusion that it was not of such a character, regarded separately and apart from that of the defendant, as would justify its submission to the jury. Similarly, in this case, I think that the plaintiff failed to present evidence “ upon which the' jury could properly proceed to find a verdict,” and that the court was, therefore, warranted in directing a verdict in favor of the defendant.