Judgment and order affirmed, with costs.

McLAUGHLIN, J.:

The evidence introduced upon this trial is substantially the same as that offered on the former trial. On the former trial the complaint was dismissed, but on appeal this court held ( 6 App. Div. 472) that the trial court erred, and that the case should have been submitted to the jury The law as declared on the previous appeal is the law of this case. I think, therefore, that the judgment and order should be affirmed, with costs. Van Brunt, P.J., and Patterson, J., concurred. For the reasons stated by Mr. Justice Ingraham on the former appeal, O'Brien and Ingraham, JJ., dissented.