Opinion
Argued March 18, 1935
Decided May 21, 1935
Appeal from the Supreme Court, Appellate Division, Third Department.
J. Stanley Carter for appellant. James A. Leary and Walter A. Fullerton for respondents.
We agree with the Appellate Division that, "Under the evidence, irrespective of the origin of the fire, it was a question of fact whether the defendant had used reasonable care to safeguard his guests." ( 242 App. Div. 892, 893.) There was, however, no evidence of negligence in respect of the origin of the fire. The refusal so to charge the jury was error for which a new trial should be had.
In each case the judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.
CRANE, Ch. J., LEHMAN, O'BRIEN, CROUCH and LOUGHRAN, JJ., concur; HUBBS and FINCH, JJ., dissent and vote to reverse and dismiss the complaint.
Judgments reversed, etc.