Opinion
June 21, 1962
The record would sustain a verdict either for assault or negligence, and there is no contention that either is against the weight of evidence; but the record does not sustain a verdict found on both negligence and assault and is thus inconsistent. Judgment reversed on the law and the facts, with costs to plaintiffs, and a new trial ordered unless within 10 days from notice of entry of the order herein, plaintiffs stipulate to a modification to base the judgment either on assault or negligence, in which event the judgment as thus modified is affirmed. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.