Opinion
December 27, 1961
Motion by plaintiffs to consolidate their cross appeal with the appeal of defendant City of New York, and for leave to dispense with printing of exhibits. Motion denied. Cross motion by defendant City of New York to dismiss the plaintiffs' cross appeal: (1) from so much of a judgment of the Supreme Court, entered July 20, 1961, in Kings County, as limits the recovery of the plaintiff Nicholas Borgia, individually, to $17,500, and (2) from an intermediate order of said court entered November 7, 1960, which granted the city's motion to amend its answer so as to include therein an affirmative defense to the effect that the action was barred by the short Statute of Limitations set forth in section 50-e Gen. Mun. of the General Municipal Law. Motion granted, without costs, and appeal dismissed, without costs. The plaintiff Nicholas Borgia, as guardian ad litem, is not aggrieved by that part of the judgment from which he seeks to appeal. Nor is he aggrieved individually by such part of the judgment, since he consented to the reduction to $17,500 of the jury's verdict for $45,000 in his favor (cf. Enslein v. Hudson Manhattan R.R. Co., 5 N.Y.2d 778; Civ. Prac. Act, § 557). With the dismissal of plaintiffs' cross appeal from the judgment, their right under section 580 of the Civil Practice Act to appeal from said intermediate order falls. Ughetta, Acting P.J., Christ, Pette and Brennan, JJ., concur.