Majority
Judgment and order unanimously affirmed, with costs. In our opinion the conduct of counsel for defendant Owens in cross-examining witnesses for defendant Mazzola and in presenting defendant Owens’ case, together with the uncontradicted statement of plaintiff’s counsel, made at the close of defendant Mazzola’s case, that defendants had agreed that one or the other was negligent and that they would fight it out between them, indicates that defendant Owens intended to contest the question of negligence with his codefendant irrespective of the fact that plaintiff’s story generally coincided with his. As between the defendants, liability has been thrust by the jury on defendant Owens. Present — Lazansky, P. J., Young, Kapper, Seeger and Scudder, JJ.