SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 1, 1968
GAETANO CASCIA, RESPONDENT,
MAZE WOODENWARE CO., INC., DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLANT. ZEILON MASON CONTRACTORS, THIRD-PARTY DEFENDANT-RESPONDENT
Beldock, P. J., Christ, Brennan, Hopkins and Martuscello, JJ., concur.
In this court's opinion and decision slip dated April 15, 1968 (which is being amended hereby), the ground of the decision was stated to be that plaintiff had presented no proof that the "putlog" in question was defective when it was delivered to plaintiff's employer, the third-party defendant; and the purpose of granting a new trial was to give plaintiff an opportunity to adduce such proof. However, on the instant motion his attorney contends that the proof was sufficient as to that issue, has averred that it is "impossible to adduce any further evidence" thereon, and asks that this court dismiss the complaint because that "will enable the Court of Appeals to determine whether the proof * * * was sufficient to support the jury's finding." Under the circumstances, this aspect of the instant motion should be granted. However, with the complaint dismissed, it follows that the granting of a new trial as to the third-party complaint must also be withdrawn and the provisions in the judgment in favor of the third-party defendant upon the dismissal of the third-party complaint must be affirmed. Were it not for plaintiff's request and consent to the amendment of the original opinion and decision slip as herein provided for, we would not now revise our said original determination, since we adhere to the views set forth in said original slip, not only as to plaintiff's evidence concerning the putlog, but also as to the amendment of the complaint shortly before the case went to the jury and as to the third-party defendant's liability to appellant on the indemnity agreement. This court's order dated April 15, 1968 is vacated and a new order in accordance herewith will be made.
As so modified, judgment affirmed, with costs to appellant against plaintiff. The findings of fact below have not been affirmed.
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