Orders affirmed, with $10 costs and disbursements.
We agree with the learned Special Term that, in advance of trial, despite the formal allegations in the pleadings, it cannot be here said with any degree of certainty — assuming that defendant Jarka is adjudged to be liable to the plaintiff — whether such liability will be founded on Jarka's active or passive negligence. Under all the circumstances here, that is, in our opinion, an issue of fact which...
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