Majority
p. 610Lilly P. Armstrong, as Administratrix of the Estate of Paul E. Armstrong, Deceased, Appellant, v. Richard F. Bacher et al., Respondents, and County of Erie, Defendant. Argued October 6, 1953; decided November 19, 1953.
p. 611
Edward H. Kavinoky for appellant.
William M. Fay for Richard F. Bacher and another, respondents.
p. 612
James 8. Pierce, County Attorney (Boy P. Ohlin and Frank G. Godson of counsel), for County of Cattaraugus, respondent.
As to the defendant County of Cattaraugus judgments of the Appellate Division and of the Trial Term reversed and a new trial granted, with costs to abide the event, upon the ground that the proof relating to the presence of gravel and cinders upon the highway presented an issue of fact as to whether the defendant County of Cattaraugus had been guilty of negligence causative of the accident. No opinion.
As to the defendants Bacher and Seider appeal dismissed, with costs, upon the ground that no stipulation for judgment absolute has been given.
Concur: Lewis, Ch. J., Conway, Desmond, Dye and Frobssel, JJ. Fuld and Van Voorhis, JJ., dissent and vote to affirm as to the County of Cattaraugus on the opinion of the Appellate Division.