Majority
p. 962Hans Spirgatis and August Stegen, Respondents, v. Gross Morton Corp., Appellant, Respondent, and The City of New York, Appellant.
Action to recover damages for personal injuries sustained by the plaintiffs when the automobile in which they were riding struck a sewerhead projecting above the pavement level of a public street. Resettled judgment in favor of plaintiffs against
p. 963
both defendants modified on the law by striking out the recital that defendant City of New York’s motion for judgment on its cross-complaint is denied, and the provision dismissing the cross-complaint of said city for judgment over, and by substituting in place thereof a recital that the motion is granted; and by adding a decretal paragraph providing for such judgment. As thus modified, the judgment is unanimously affirmed, with costs to plaintiffs. Both defendants are liable in negligence to plaintiffs for the presence of the obstruction in the public street, defendant builder for having created the condition, and defendant city for having permitted it to continue after notice of its existence. The actively negligent one, however, is liable over to defendant city. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. Settle order on notice.