Opinion
January, 1934.
Present — Sears, P.J., Taylor, Thompson, Crosby and Lewis, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellants to abide the event. Memorandum. Even if it be assumed that in the action entitled Vorce v. Town of Tonawanda, this defendant F.J. Mumm Contracting Company was sufficiently vouched into the action so as to be bound by the judgment — neither in the judgment roll in that action nor in the testimony presented upon the instant trial does it sufficiently appear that negligence of the Mumm Company was a contributing cause of the death of Kenneth Vorce. The burden of proof as to this was upon plaintiff. ( Parisi v. Hubbard, 226 App. Div. 280, 282.) All concur.