
    Charles McGillick, Respondent-Appellant, v. Valcante Construction Corporation, Appellant; G & M Construction Co., Respondent, et al., Defendants.
   Action to recover damages for personal injuries. Plaintiff, an operator of a crane, was engaged at a building project in lifting earth over a newly constructed wall and depositing it in a space behind the wall. The wall collapsed and plaintiff was severely injured. The general contractor, Valeante Construction Corporation, sued as Valeante Construction Co., had an agreement with defendant De Maria, doing business as1 Ace Carting Co., to do the backfilling work. De Maria engaged Bast Bay Trucking Corporation (not a party), of which plaintiff was an officer, to do the actual work. Plaintiff’s work was directed by defendant De Maria. The case was given to the jury against defendant G & M Construction Co., the concrete subcontractor, on the theory that it constructed an unsafe wall; and against defendant Valeante Construction Corporation, the general contractor, on the theory that it was responsible for the condition of the wall and on the further theory that it permitted plaintiff’s work when no support for the wall had been provided. The jury rendered a verdict for $100,000 in plaintiff’s favor and against defendant Valeante Construction Corporation and in favor of defendant G & M Construction Co. against plaintiff. The court denied the motion of defendant Valeante Construction Corporation for judgment on its cross complaint against defendant G & M Construction Co. Plaintiff appeals from the judgment entered thereon insofar as it is in favor of G & M Construction Co. and against him. Defendant Valeante Construction Corporation appeals from such judgment insofar as it is in favor of plaintiff as against it, and insofar as said defendant’s cross complaint against defendant G & M Construction Co. is dismissed. Defendant Valeante Construction Corporation also appeals from an order granting plaintiff’s motion to correct the name of defendant Valeante Construction Co. to Valeante Construction Corporation, nunc pro tunc, pursuant to section 109 of the Civil Practice Act. Order affirmed, without costs. Judgment modified on the facts by striking therefrom the first decretal paragraph and by substituting therefor a provision that the judgment in favor of plaintiff and against defendant Valeante Construction Corporation is reversed on the facts and a new trial granted, as to said defendant, with costs to abide the event, and as modified, affirmed, without costs; unless, within twenty days after the entry of an order hereon, plaintiff stipulate to reduce the verdict in his favor to $60,000, in which event, the judgment as so reduced is affirmed, without costs. The errors, if any, with respect to the court’s refusal to grant the requests to charge numbered 10, 15 and 19 may be disregarded under section 106 of the Civil Practice Act. But the verdict, in our opinion, is excessive. Johnston, Adel, MaeCrate and Schmidt, JJ., concur; Nolan, P. J., concurs in the affirmance of the order, but dissents as to the modification of the judgment and votes to affirm said judgment without reduction.  