Davis v. Pross

In an action to recover damages for injuries to a motor vehicle, in which a counterclaim for similar relief was interposed, the appeal, by permission of this court, is from an order of the Appellate Term affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, entered after trial by the court without a jury, awarding respondent $35 and dismissing the counterclaim. Order modified on the law by striking therefrom everything following the words “and the same is hereby” and by substituting therefor the words “modified by striking therefrom the decretal paragraph and by substituting therefor a provision that the complaint and counterclaim be dismissed, and as so modified, affirmed.” As thus modified, order unanimously affirmed, without costs. The findings of fact are affirmed. In our opinion, the proof does not establish that appellant’s ear collided with respondent’s, nor is there any proof that either party was negligent (see Wank v. Ambrosino, 307 1ST. Y. 321; Levins v. Bucholtz, 2 A D 2d 351). Present — Wenzel, Acting P. J., Beldoek, Murphy, TJghetta and Kleinfeld, JJ.