New York Supreme Court December 15, 1863 (Wyman v. Smead)

Miller, J., dissenting.

I am constrained to differ from the opinion of Mr. Justice Peckham, in favor of granting a new trial in this case. I agree, however, with him that the *354disposition of the case must depend upon the question whether it is within the principle laid down in Bush agt. Lathrop (22 N. Y. 535), which is relied upon to sustain the position taken by the defendant’s counsel.