Baruch v. City of New York , 248 N.Y.S.2d 88 ( 1964 )

In a negligence action to recover damages for personal injury sustained when plaintiff fell while crossing a roadway being resurfaced by defendant Mae Asphalt Construction Corp. under a contract with defendant City of New York, the defendants appeal as follows from a judgment of the Supreme Court, Kings County, entered August 10, 1962 after trial, upon the jury’s verdict in favor of plaintiff for $50,000 against both defendants: (1) The defendant city appeals from so much of the judgment as is against it in favor of the plaintiff. (2) The defendant Mac Asphalt Construction Corp. appeals from so much of the judgment as is against it in favor of the plaintiff and in favor of the defendant city on the city’s cross complaint against it. Judgment reversed on the facts and a new trial granted as to all parties, with costs to abide the event, unless, within 20 days after entry of the order hereon, plaintiff shall serve and file a written stipulation consenting to reduce to $35,000 the amount of the verdict in her favor and to modify the judgment accordingly. In the event such stipulation he served and filed, the award to the city on its cross complaint is correspondingly reduced, and the judgment as thus reduced and modified with respect to all parties, is affirmed, without costs. In our opinion, under all the circumstances, the verdict in favor of the plaintiff was excessive to the extent indicated. We are also of the opinion that the city’s judgment over on its cross complaint was proper, since it was guilty of passive negligence only and the defendant Mac Asphalt was the active wrongdoer (Lobello v. City of New York, 268 App. Div. 880, affd. 294 N. Y. 816; cf. Sobel v. City of New York, 9 N Y 2d 187, 193; Cargel v. City of Yonkers, 11 A D 2d 716, affd. 9 N Y 2d 781). Kleinfeld, Acting P. J,, Christ, Brennan, Hill and Hopkins, JJ., concur.