
    Ida Zimmer, Respondent, v. Michael Lehnert and Alfred Lehnert, Respondents, and Lillian Alperin, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 28, 1929.
    
      Meyer Greenberg, for the appellant Lillian Alperin.
    
      McDonnell & Lebett [George J. McDonnell of counsel], for the plaintiff, respondent.
    
      Leo C. Kelly [James Ireland of counsel], for the defendants, respondents, Michael Lehnert and Alfred Lehnert.
   Per Curiam.

So much of the verdict of the jury as held Michael Lehnert negligent but exonerated Alfred Lehnert was inconsistent and properly set aside. This inconsistency in no wise affected the propriety of the jury’s finding in favor of defendant Alperin. As a matter of fact there was no basis in the evidence for a contrary holding as to the last-named defendant. The court below should have severed the action and allowed it to proceed to a retrial as to the Lehnerts. To compel Alperin to sustain the expense of further trial under the circumstances is unjust and unnecessary. (See Draper v. Interborough Rapid Transit Co., 124 App. Div. 357; Tamer v. Breen, 131 id. 654.)

Order in so far as it affects the defendant Alperin reversed, with costs, and verdict reinstated as to said defendant.

Lydon and Callahan, JJ., concur.

Bijur, J. (dissenting).

I dissent. (See Thermoid Rubber Co. v. Baird Rubber Co., 124 Misc. 774; S. & C. Clothing Co. v. United States Trucking Corp., 216 App. Div. 482.)  