PER CURIAM. Both parties treat this appeal as one arising upon the plaintiff’s notice, dated July 28th, from an order, dated July 19th, setting aside a verdict and vacating a judgment entered in favor of the plaintiff, while the return dated May 25, 1905, discloses no such order, but a judgment entered April 12th, from which there is a notice, dated May 1st, of appeal by the defendant.
Taking the appeal, last mentioned, but prior in date, as the one alone here to be considered, the judgment should be reversed, following Thomas v. Williams (decided by this court at the term in October last) 95 N. Y. Supp. 592, because of error in excluding evidence to show the instructions, if any, given by the defendant as to denying or inciting the denial to the plaintiff of full enjoyment of accomodation at the theater conducted by him for conditions not established by law and applicable alike to all citizens.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.
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