Opinion
June 21, 1976
In an action to recover damages for wrongful death, etc., the defendant appeals from (1) so much of an amended judgment of the Supreme Court, Westchester County, entered May 28, 1975, as (a) set aside the jury's verdict in his favor on the first, fifth and sixth causes of action and (b) ordered a new trial as to the said causes and (2) an order of the same court, dated July 29, 1975, which, upon plaintiffs' motion to set aside the verdict as to the remaining causes of action, inter alia, directed that the amended judgment be amended by striking the fifth and seventh decretal paragraphs thereof. Amended judgment affirmed insofar as appealed from and order affirmed, with costs to abide the event. A new trial is required because of the trial court's refusal to charge the jury in accordance with the principles set forth in Pfaffenbach v White Plains Express Corp. ( 17 N.Y.2d 132). We do not consider the issue raised by plaintiffs, as cross-appellants, because a cross appeal has not been properly perfected. Hopkins, Acting P.J., Martuscello, Latham, Titone and Hawkins, JJ., concur.