
    V. LOEWER’S GAMBRINUS BREWERY CO., Appellant, v. JAMES McGINN BROS. et al., Respondents.
    (Supreme Court, Appellate Term.
    February 11, 1907.)
    Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by the V. Loewer’s Gambrinus Brewery Company against James McGinn Bros, and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed as to defendant Ficke, and otherwise reversed. Paskus & Cohen, for appellant. Frank Verner Johnson, for respondents.
   MacLEAN, J.

The complaint herein was properly dismissed as to the defendant Ficke, because there was no proof that he was the owner of the wagon in collision on Thirty-Seventh street, between the North River and Eleventh avenue, with a wagon presumably belonging to and in the service of his codefendants (Norris v. Kohler, 41 N. Y. 42, 45); but as to the latter there arose, under the doctrine of Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380, 384, 56 N. E. 988, for submission to the jury an issue of negligence, meager as were the details of the occurrence. The judgment should be affirmed, with costs as to the respondent Ficke, and reversed as to the defendant Mc-Ginn Bros., and a new trial ordered, with costs to the appellant to abide the event. Judgment affirmed as to the respondent Ficke, with costs, and reversed as to the defendant McGinn Bros., with costs to the appellant to abide the event. All concur.  