Opinion
December 8, 1953.
Present — Peck, P.J., Cohn, Callahan and Breitel, JJ.
As defendants have admitted liability in these consolidated actions, the delay in making the motion to restore the case to the calendar after the verdict of the jury had been set aside for excessiveness should not operate to their prejudice if they are called upon to respond in damages only to the extent of the amounts fixed by the Trial Judge when he set aside the verdict of the jury. Accordingly, the order appealed from is affirmed upon condition that the Home Siphon Filling Corp. tender to plaintiffs respectively, payment of one half of the judgment as subsequently reduced by the trial court, and that plaintiffs be permitted to present their respective claims for the other one half of the judgment, as subsequently reduced, to the codefendant Third Avenue Transit Corp., or its representatives. In the event that defendants do not consent to this arrangement, the order appealed from is reversed and the motion of plaintiffs to restore the cases to the calendar for trial is granted. Settle order on notice.