Beardsley v. . N.Y., L.E. W.R.R. Co.

This case is necessarily governed by the principles laid down by the Supreme Court of the United States in Lake Shore M.S.Ry. Co. v. Smith (173 U.S. 684). While I do not yield assent to the reasoning of that great court in that case, I am compelled to yield to its power and vote for reversal, but not for a dismissal of the complaint.

As the action of the courts below was in accordance with the law of this state as it was, apparently if not actually, when they acted, the reversal should be with leave to the plaintiff to apply at Special Term for permission to discontinue without costs, on the…