Macaulay v. City of New York & DiMarco & Reimann, Inc.

It does not appear that the defective condition of the roadway which resulted in the death of plaintiff’s intestate was caused by the work carried on by the defendant DiMarco & Reimann, Inc., twenty-five feet distant from the place of the accident. For that reason the evidence is insufficient to charge the defendant DiMarco & Reimann, Inc., with responsibility for the accident, and the judgment against that defendant must be reversed and the complaint dismissed.

The verdict as against the remaining defendant, The City of New York, is excessive and should be reduced to $5,000.

The judgment against defendant DiMarco & Reimann, Inc., should be reversed, with costs, and the complaint as to said defendant dismissed, with costs, the action severed, and the judgment against defendant The City of New York reversed and a new trial ordered', with costs to said appellant to abide the event, unless the plaintiff stipulates to reduce the judgment as entered to the sum of $5,806.25, in which event the judgment as so ¡modified as against the defendant The City of New York is affirmed, without costs.

Present — Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ., concur.

Judgment against the defendant DiMarco & Reimann, Inc., reversed, with costs to said appellant, and the complaint as to said defendant dismissed, with costs, the action severed, and the judgment as against the defendant The City of New York reversed and a new trial ordered, with costs to said appellant to abide the event, unless the plaintiff stipulates to reduce the judgment as entered to the sum of $5,806.25; in which event the judgment as so modified as against said defendant is affirmed, without costs. Settle order on notice.