Alfred G. Eisenbraun, Respondent, v. City of New York et al., Appellants, et al., Defendant

Alfred G. Eisenbraun, Respondent, v. City of New York et al., Appellants, et al., Defendant. [MAJORITY] Action by a passenger in a motor vehicle to recover damages for personal injuries against New York Board of Fire Underwriters, and one Nolan, respectively the owner and operator of a truck which collided with the said vehicle, and the City of New York which was alleged to have been negligent in maintaining trolley tracks in a city street where the collision occurred. At the end of the entire ease the action was discontinued as against the operator. The city and the Board of Underwriters appeal from a judgment entered on a jury verdict in favor of the passenger, insofar as said judgment is against them. Judgment insofar as it is in favor of respondent against appellant Board of Underwriters reversed, action severed and a new trial granted as between respondent and said appellant, with costs to said appellant to abide the event. Judgment insofar as it is in favor of respondent against appellant city reversed on the law and the facts, with costs, and complaint dismissed. In our opinion, the finding implicit in the verdict that appellant Board of Underwriters was negligent is against the weight of the credible evidence. (Cf. Rowlands v. Parks, 2 N Y 2d 64; Nussbaum v. Dennis, 5 A D 2d 787.) We are also of the opinion that the evidence was insufficient to establish negligence on the part of appellant city (cf. Green v. City of Mechanicville, 269 N. Y. 117). Nolan, P. J., Beldoek and Hallinan, JJ., concur; Wenzel and Ughetta, JJ., concur in the reversal of the judgment as to both appellants and in the dismissal of the complaint as to apioellant city, but dissent as to the severance of the action and the granting of a new trial as to appellant Board of Underwriters, and vote to dismiss the complaint as to it.