
    (June 25, 1962)
    Carmine A. Battista et al., Respondents, v. James B. Bogan, Appellant, et al., Defendant.
   In a negligence action to recover damages for injuries to person and property, arising out of a collision between a truck operated by plaintiff Battista and owned by the corporate plaintiff, and the automobile owned and operated by the defendant Bogan who lost control of the operation of his automobile by reason of an excavation in the highway made by defendant Consolidated Edison Company, the defendant Bogan appeals from so much of a judgment of the Supreme Court, Westchester County, entered November 3,1961 after a jury trial, as is in the plaintiffs’ favor against him. Judgment, insofar as appealed from, affirmed, with costs. No opinion. Kleinfeld, Christ and Rabin, JJ., concur; Ughetta, Acting P. J., and Hill, J., dissent and vote to reverse the judgment insofar as appealed from, and to dismiss the complaint on the ground that the evidence adduced was insufficient as a matter of law to establish that the defendant Bogan was negligent in the operation of his automobile (cf. Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188, 195; Digelormo v. Weil, 260 N. Y. 192, 200).  