The opinion
Piper, J.
(dissenting). I dissent on the same grounds set forth in my dissenting opinion in Applebee v. State of New York ( 284 App. Div. 532, 536, 537 ), and also on the further ground that it was the duty of Smithart to stop at the intersection and grant the right of way to the Grurevitch car which was approaching from his right. The intersection sign gave him ample warning that he was approaching an intersection; he should have *721 slowed down and stopped if necessary. As the statute (Vehicle and Traffic Law, § 82, subd. 4) demanded that Smithart stop before entering the intersection to permit the Gurevitcb car to pass, and he failed to obey that mandate, I think we are not required to speculate that he would have obeyed the requirement that he stop, had the stop sign been in place.
The finding of the trial court that the gross negligence of Smithart was the sole cause of the accident has ample support in the evidence. It was a question of fact for the court to decide and his finding should not be disturbed. I vote for affirmance.
All concur except Piper, J., who dissents and votes for affirmance, in opinion. Present — McCurn, P. J., Vaughan, Piper, Wheeler and Van Duser, JJ.
Judgments reversed on the law and facts and a new trial granted, without costs of this appeal to any party.