Opinion
March 22, 1948.
Present — Lewis, P.J., Carswell, Johnston, Sneed and Wenzel, JJ.
This is an action sounding in negligence, brought by an infant plaintiff for personal injuries, and by his father for medical expenses and loss of services. The appeal is from a judgment, entered upon the verdict of the jury, awarding plaintiff father, John Fred Krumme, the sum of $456.80, against both defendants. The judgment also set aside the verdict for the infant plaintiff, John Fred Krumme, Jr., in the sum of $500, as inadequate, and directed a new trial as to such plaintiff, and dismissed the cross complaint of defendant Cushman's Sons, Inc., against Nicholas Fazzolari. Judgment modified on the law and the facts, by striking out the third decretal paragraph and substituting therefor the following: "Adjudged that defendant Cushman's Sons, Inc., do recover of defendant Nicholas Fazzolari the sum of $456.80 on its cross-complaint, and that defendant Cushman's Sons, Inc., have execution therefor." As so modified, the judgment, insofar as appealed from, is unanimously affirmed, with costs in favor of plaintiff John Fred Krumme against defendants. Defendant Fazzolari was the active wrongdoer, and defendant Cushman's Sons, Inc., was guilty only of passive negligence. ( Scott v. Curtis, 195 N.Y. 424.)