Opinion
March, 1922.
Judgment affirmed, with costs. All concur, except Davis, J., who dissents and votes for reversal, upon the ground that at the time of the accident the plaintiff was a public officer, engaged in the discharge of his duty, and that it was a question of fact as to whether or not he was guilty of contributory negligence and it could not be determined as a question of law by the court under the authority of Xenodochius v. Fifth Ave. Coach Co. ( 129 App. Div. 26); Smith v. Bailey (14 id. 283); Lewis v. Binghamton R.R. Co. (35 id. 12); Reilly v. Interurban St. R. Co. (108 id. 254), and O'Connor v. Union R. Co. (67 id. 99).