Montis v. Fifth Avenue Coach Co. , 37 N.Y.S.2d 649 ( 1942 )

Per Curiam.

The judgment in favor of plaintiffs against defendant-appellant Fifth Avenue Coach Company is contrary to the overwhelming weight of the credible evidence. Defendant Thomas F. Hoctor, called as a witness by plaintiffs, admitted on cross-examination that the left front end of his car struck the center of appellant’s bus. In the report of the accident, which he made to the motor vehicle bureau, Thomas F. Hoctor stated that while southbound on Fifth avenue he misjudged the distance and collided with appellant’s northbound bus and that he had lost control of his own car and struck four other cars. We think, too, that the testimony of plaintiff Tursi and defendant Thomas F. Hoctor, to the effect that appellant’s bus was to the left of the white line in the center of the roadway at the time of the accident, was completely discredited by the unimpeached evidence from the police department, that there was no white traffic line in the center of Fifth avenue. A judgment against appellant was not warranted by the record in this case.

We do not pass upon the liability of defendants Hoctor to plaintiffs as the complaint against these defendants was dismissed and no appeal was taken from that part of the judgment.

The judgment against defendant Fifth Avenue Coach Company should be reversed with costs, and the complaint dismissed as to it, with costs.

Martin, P. J., Townley, Glennon and Cohn, JJ., concur.

Judgment reversed, etc.