Opinion
July, 1934.
Order reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion the defendant and its representatives, by their words and conduct, misled plaintiffs and their attorney into the belief that the proper party defendant had been sued, and the present defendant and the Union Railway Company of New York city are so closely affiliated that no prejudice can result from granting plaintiffs' motion. Young and Scudder, JJ., concur; Hagarty, J., concurs on authority of Lewis v. City of New York ( 241 App. Div. 754) ; Lazansky, P.J., and Davis, J., dissent.