Judgment reversed upon the law and new trial granted, costs to abide the event. The court's ruling at folio 128 was error, it not having been made to appear that the alleged earnings were not due in any substantial degree to profit from invested capital. ( Walsh v. N.Y.C. H.R.R.R. Co., 204 N.Y. 58; Gombert v. N.Y.C. H.R.R.R. Co., 195 id. 273, 279; Weir v. Union R. Co., 188 id. 416.) Lazansky, P.J., Rich, Young, Seeger and Carswell, JJ., concur.