Per Curiam.
The instructions given by the trial justice in stating the rule of damage were clearly erroneous (Schmidt v. Interborough Rapid Transit Co., 97 N.Y.S. 330), were excepted to at the close of the charge, were not modified or withdrawn but were practically repeated and emphasized. Of course we are unable to determine whether defendant was prejudiced or not thereby, but it may well have been. It was its legal right to have the rule correctly stated and judgment founded upon improper instructions, duly excepted to, cannot be upheld.
Present: GILDERSLEEVE, FITZGERALD and DAVIS, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.