Alexander Moore et al., Respondents, v. Ellis Levine et al., Appellants, 20 A.D.2d 814

In an action to recover damages for personal injuries allegedly sustained by the plaintiffs in a collision at an intersection between the truck in which they were riding and a station wagon owned by the corporate defendant and operated by the individual defendant, the defendants appeal, pursuant to

section 457-a of the former Civil Practice Act, from so much of an order of the Supreme Court, Kings County, entered May 16, 1963, as, upon the granting of reargument, after the jury had failed to agree on a verdict, denied defendants’ motions, made at the trial, to dismiss the complaint, to direct a verdict, and to dismiss the plaintiff Green’s complaint for lack of prosecution. Order modified so as to grant the defendants’ motions to dismiss the complaint on the merits. As so modified, order, insofar as appealed from, affirmed, with costs to defendants.

In our opinion the plaintiffs failed to prove prima facie: (1) that the defendants were guilty of any negligence causing the accident; and (2) that plaintiff Moore, who was driving, was free from contributory negligence. The motion, made for the first time at the trial, to dismiss the complaint for lack of prosecution was properly denied, however. Kleinfeld, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.