The only attack upon this judgment by the appellant is that the verdict of the jury is against the weight of evidence. When the case was before this court on a former appeal (56 App. Div. 332, 67 N. Y. Supp. 767), it was held that the question was one for the jury, and the judgment was affirmed. There was a dissent in that case, based entirely upon an exception to the charge. Upon an appeal to the Court of Appeals (171 N. Y. 309, 63 N. E. 1096) that judgment was reversed upon the ground that there was error in the charge, to which the defendant excepted, and which entitled the defendant to a new trial. We think that, in view of this determination of the court upon the former appeal, we would not be justified m setting aside the verdict upon the ground that it was against the weight of evidence.
It follows that the judgment and order appealed from must be affirmed, with costs. All concur.