Opinion
June 11, 1951.
In an action by two passengers of a bus owned and operated by the City of New York to recover damages for injuries suffered as the result of a sudden stop made by the bus, the city claimed that the sudden stop was caused by an emergency created when defendant Hiller's truck cut in front of the bus without warning. The jury returned a verdict in favor of both plaintiffs against the City of New York, but failed to mention defendant Hiller. The court directed that the verdict exonerated defendant Hiller from responsibility. The city appeals from the judgment in favor of plaintiffs against it and in favor of defendant Hiller against plaintiffs, and from an order disallowing a proposed amendment to the case on appeal. Plaintiff Salkin appeals from so much of the judgment in favor of defendant Hiller against him. Judgment in favor of plaintiffs against defendant City of New York affirmed, with costs. Insofar as the city appeals from the judgment in favor of defendant Hiller and against plaintiffs, appeal dismissed, with costs to defendant Hiller as stated below. ( Nekris v. Yellen, 302 N.Y. 626; Hilton v. Steinman, 276 App. Div. 1089.) Appeal by defendant city from the order insofar as it disallows the amendment proposed by said defendant dismissed on consent, without costs. Insofar as plaintiff Salkin appeals from the judgment in favor of defendant Hiller, judgment affirmed, with costs to defendant Hiller as stated below. The failure to mention defendant Hiller in the verdict was properly construed as a verdict in favor of that defendant. ( Saulsbury v. Braun, 223 App. Div. 555, affd. 249 N.Y. 618; Thibodeau v. Gerosa Haulage Warehouse Corp., 252 App. Div. 615, affd. 278 N.Y. 551; Hosinger Bode v. Eleven Franklin Place, 268 App. Div. 197; Hoffman v. Brooklyn, Q.C. S.R.R. Co., 78 Misc. 507.) One bill of costs to defendant Hiller against both plaintiff Salkin and defendant City of New York. Nolan, P.J., Carswell, Johnston and Sneed, JJ., concur; Wenzel, J., concurs in the dismissal of the appeal from the judgment in favor of defendant Hiller and against plaintiffs and in the dismissal of the appeal from the order, but dissents in all other respects and votes to reverse and to grant a new trial in the interests of justice.