
    Lawrence R. Wild, Appellant, v. Robert C. Weiss, Respondent.
    Supreme Court, Appellate Term, First Department,
    October 18, 1956.
    
      Bernard Meyerson and Alex A. Bohm for appellant.
    
      Thomas R. Evans, Herbert F. Hastings, Jr., and F. G. Mann for respondent.
   Per Curiam.

The negligence of an automobile driver cannot be imputed to passenger who had joint control of the car in an action between driver and passenger. The rule of imputation of driver’s negligence applies only in actions brought by or against third parties. (Smith v. Clute, 277 N. Y. 407, 414.) However, plaintiff failed to make out a prima facie case.

The judgment should be modified by providing that the dismissal of the complaint is without prejudice, and as so modified affirmed, without costs.

Edeb, Hecht and Tilzee, JJ., concur.

Judgment accordingly.  