Majority
Judgment entered July 8, 1955, insofar as appealed from and order affirmed, without costs of this appeal to either party; judgment entered August 15, 1955, reversed, on the law and facts, with costs, and matter remitted to the Supreme Court of Erie County to permit application by plaintiff for judgment as upon a default. Memorandum: The negligence of the defendant Simon, who defaulted in appearing, was clearly established by uncontroverted evidence. The judgment as to this defendant should be reversed and the case remitted to the Supreme Court for application by plaintiff for judgment as upon a default. All concur. (Appeal from part of a judgment of Erie Trial Term for defendants for no cause of action in an automobile negligence action, appeal being from dismissal as to defendant Mitchell. The order denied plaintiff’s motion for a new trial; also appeal from a judgment in favor of defendant Simon for no cause of action.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Williams, JJ.