SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 13, 1968
ROBERTA WHITELY ET AL., INDIVIDUALLY AND AS NATURAL GUARDIANS OF WILLIAM WHITLEY AND ANOTHER, RESPONDENTS,
ANDREW LO BUE ET AL., APPELLANTS
Order of the Supreme Court, Nassau County, dated September 8, 1967, which, on reargument, adhered to the original decision granting plaintiffs' motion for summary judgment (directing an assessment of damages), reversed insofar as appealed from, on the law, without costs, and plaintiffs' motion denied. Appeal from order of said court dated July 31, 1967 dismissed, without costs.
Brennan, Benjamin and Martuscello, JJ., concur; Christ, Acting P. J., and Rabin, J., concur.
In our opinion, the issues in this action should be tried and determined by a jury (see Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132; Rosenthal v. Monastra, 27 A.D.2d 749; Gerard v. Inglese, 11 A.D.2d 381).
The order was superseded by the order dated September 8, 1967, which granted reargument.
Christ, Acting P. J., and Rabin, J., concur in the dismissal of the appeal from the order dated July 31, 1967; and otherwise dissent and vote to affirm the order dated September 8, 1967 insofar as appealed from.
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