Opinion
May 28, 1945.
Present — Close, P.J., Hagarty, Carswell, Adel and Aldrich, JJ.
Action to recover damages for the death of plaintiff's intestate, a helper on an automobile truck which ran into appellants' truck while it was stalled on the highway in the darkness, without lights. Judgment entered on the verdict of a jury in favor of plaintiff modified on the law by striking out the words "and the co-partnership, Market Trucking Company" and substituting in place thereof the words "and Isidore Hirschberger, Albert Hirschberger and David Hirschberger, co-partners, doing business under the firm name and style of Market Trucking Company." As thus modified, the judgment is unanimously affirmed, with costs to respondent. The admissions in the answer should be construed as indicating that the members of the partnership, as named in the summons and complaint, were the owners of the truck; and the misdescription in the judgment should be corrected accordingly. (Civ. Prac. Act, § 105.) The order of severance is construed as severing the action directed to the individual and not the partnership liabilities of defendants Isidore and Albert Hirschberger.