La Bate v. Meyerbank Electrical Co. 23 A.D.2d 503

In an action ito recover damages for personal injury, in which the defendant H. R. H. Construction Corp. asserted a cross complaint against its eodefendant, Meyerbank Electrical Co., Inc., doing business as E. J. Electric Installation Co., all the defendants, by permission of the Appellate Term of the Supreme Court, appeal from an order of that court, entered April 27, 1964, which affirmed a judgment of the Civil Court of the City of Few York, County of Queens, entered April 11, 1963 after trial, upon a jury’s verdict (as corrected by the court) in the plaintiff’s favor against all the defendants. Order of the Appellate Term and judgment of the Civil Court reversed on the law and the facts and in the exercise of discretion, and a new trial granted, without costs. The time of the defendants Meyerbank Electrical -Co., Inc., and E. J. Electric Installation Co. to serve an amended answer is extended until 20 days after entry of the order hereon. If so advised, plaintiff may apply for such adjournment of the new trial as may be required to enable him diligently to conduct any necessary pretrial investigation and examination. In our opinion, upon the facts presented, defendants Meyerbank Electrical Co., Inc., and E. J. Electric Installation -Co., sued as set forth in the above title, should have been allowed to amend their answer so as to deny the fifth paragraph of the complaint, alleging their negligence, which paragraph they had inadvertently failed to deny in the answer previously served (of. Bendan Holding Corp. V. Bodner, 245 App. 'Div. 723). We are also of the opinion that the find-*504mg, implicit in the jury’s verdict, that plaintiff was free from contributory negligence, was against the weight of the evidence. A new trial is required in the interests of justice, so that proof may be adduced on all the issues raised by the complaint and amended answers and by the cross complaint of the defendant H. R. H. Construction Corp. against the other defendants. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.