Lobello v. City of New York

268 A.D. 880, 51 N.Y.S.2d 7, 1944 N.Y. App. Div. LEXIS 4023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1944
• Status: Published

Opinions

Judgment in favor of plaintiff and against all three defendants, and in favor of defendant Manufacturers Trust Company and against defendant Frank Ceva & Sons, Inc., and dismissing the cross complaint of defendant the City of New York against the Manufacturers Trust Company and Frank Ceva & Sons, Inc., modified on the law and the facts by striking therefrom the dismissal of the City’s cross complaint against Frank Ceva & Sons, Inc., and by inserting in place thereof a provision granting judgment in favor of the City of New York against defendant Frank Ceva & Sons, Inc., as prayed for in the City’s cross complaint. As thus modified, the judgment, insofar as appealed from, is affirmed, with costs to plaintiff, payable by defendant Frank Ceva & Sons, Inc., and with costs in this court and in Trial Term to the City of New York, payable by defendant Frank Ceva & Sons, Inc. The proximate or immediate cause of the injury to the plaintiff was the negligent act of defendant Frank Ceva & Sons, Inc. It was the active wrongdoer, and the City of New York was guilty of passive negligence only. Walters v. Rao Electrical Equipment Co. (289 N. Y. 57) and Semanchuck v. Fifth Ave. & 37th St. Corp. (290 N. Y. 412) are inapplicable.