In an action to recover damages for personal injury allegedly caused by the negligence of the female defendant in the operation of a motor vehicle owned by her husband, the other named defendant, both defendants appeal from an order of the Supreme Court, Queens County, dated November 13, 1963, which granted plaintiffs’ motion for
summary judgment and directed an assessment of damages. Order reversed, with $10 costs and disbursements, and plaintiffs’ motion for
summary judgment denied without prejudice to renewal upon additional proof, as indicated herein. Although, as properly found by the Special Term, no triable issue exists as to the negligence of the female defendant in causing the accident, it is our opinion that the plaintiffs failed to establish their own freedom from contributory negligence. Under the circumstances they are not entitled to
summary judgment (Nicoletti v. Palmer, 16 A D 2d 960; Gale v. City of New York, 18 A D 2d 12). However, inasmuch as plaintiffs’ failure to offer proof in respect of this issue may have been an oversight, they may, if so advised, renew their application for
summary judgment upon additional proof that they were not contributorily negligent. Ughetta, Acting P. J., Brennan and Hopkins, JJ., concur; Christ and Rabin, JJ., dissent and vote to affirm the order.