Opinion
December 7, 1967
Appeal from the Erie Trial Term.
Present — Bastow, J.P., Goldman, Henry, Del Vecchio and Marsh, JJ.
Judgment and order reversed on the law, the facts, and in the interests of justice, and new trial granted, without costs. Memorandum: Our decision in Deacon v. City of Buffalo ( 29 A.D.2d 620) decided contemporaneously herewith mandates reversal of this judgment and a new trial. While plaintiff herein had no cause of action based upon the icy condition of the street the jury obviously was confused and attempted to allocate 73% of the amount of the verdict against the city and 27% against the operator of the city car. This was probably due to the fact that the court in its instructions did not with precision outline the causes of action asserted by the respective plaintiffs. All concur, except Henry and Marsh, JJ., who dissent and vote to affirm, in the same Memorandum as in Deacon v. City of Buffalo, decided herewith.