Carmen Carabott, Respondent, v. Otto May, Appellant, et al., Defendants, 21 A.D.2d 824

In an action to recover damages for personal injury, the defendant May appeals from so much of a judgment of the Supreme Court, Kings County, entered October 1, 1962 after trial, upon a jury’s verdict, as directed recovery in plaintiff’s favqr against him. Judgment, insofar as appealed from, reversed on the law and the facts; action severed as against defendant May; and a new trial granted as between plaintiff and the said defendant, with costs to abide the event. In our opinion the verdict is against the weight of the credible evidence.

Evidence is lacking to show that the control and use of the vehicle in question for the 10 days from the time of sale until the time of the accident was not such that would or could materially alter its condition. Moreover, the evidence concerning the actual happening of the accident does not preponderate in such a manner as to show that a defective brake was the causative factor. Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.