
    Joseph Libertella, Individually and as Administrator of the Estate of Grace Libertella, Deceased, Guardian ad Litem of Diane Libertella, an Infant, et al., Appellants, v. Carmen Maenza et al., Defendants, and the Town of Harrison, Respondent.
   In a negligence action against the Town of Harrison and against the owner and operator of a motor vehicle to recover damages for personal injuries and death resulting from the crash of an overcrowded open-convertible automobile into a tree, the plaintiffs appeal from an order of the Supreme Court, Westchester County, dated September 3, 1959, which granted the motion of the defendant Town of Harrison, pursuant to rule 106 of the Rules of Civil Practice, to dismiss the complaint as to the town on the ground that the complaint does not state facts sufficient to constitute a cause of action against it. With respect to the town, the complaint alleged that, prior to the crash of this open-convertible automobile into the tree, one of the town police officers while on duty had observed the overcrowding therein with 15 passengers when the automobile had stopped (at a traffic light) in full view of such police officer, and that he negligently failed to apprehend the operator for overcrowding the vehicle in violation of statute (Vehicle and Traffic Law, § 1213, formerly § 81, subd. 15). Order affirmed, with $10 costs and disbursements. No opinion. Beldock, P. J., Ughetta, ICleinfeld, Christ and Hill, JJ., concur. [21 Misc 2d 317.]  