
    Benjamin Evans, Respondent, v. City of New York, Appellant-Respondent; Advance Brick and Sand Corp., Appellant, et al., Defendants.
   In a negligence action to recover damages for personal injuries, defendant Advance Brick and Sand Corp. appeals, as limited by its brief, from so much of an amended judgment of the Supreme Court, Kings County, entered May 29, 1973, as is in favor of defendant the City of New York on its cross claim against said defendant Advance Brick and Sand Corp. (The city also appealed, but as appears by its letter to this court dated October 3, 1973 it has abandoned its appeal.) Amended judgment reversed insofar as appealed from, on the law and the facts and in the interests of justice, and new trial granted on the cross claim of defendant the City of New York against defendant Advance Brick and Sánd Corp., with costs to abide the event, and cross claim is severed from the main action. In our opinion, there was insufficient proof to sustain the award in favor of the city on its cross claim against appellant. However, under the circumstances presented, we are hereby furnishing the city the opportunity to proceed further on its cross claim to show a special use (Berg v. City of New York, 42 A D 2d 770), if it be so advised. The city was misled by the bill of particulars served upon it as to the location of the accident. Gulotta, P. J., Hopkins, Martuscello, Shapiro and Munder, JJ., concur. [72 Misc 2d 216.]  