Yanul v. City of New York

In such circumstances, while in our opinion it was error for the court to have charged that the vehicle on the right had the right of way (cf. Ward v. Clark, 232 N. Y. 195, 198; Plantz v. Greiner, 232 App. Div. 73, 75), nevertheless the reversal of the judgment is not required by reason of such error. That portion of the charge was given in connection with Peter and Mary Yanul’s right to recover against defendants Socony and Kornrich, and neither Welsbach nor the city was prejudiced thereby, particularly since the question of the contributory negligence of Peter Yanul was submitted to the jury both in respect of his cause of action against Socony and Kornrich, and his cause of action against the city (Civ. Prac. Act, § 106). Nor was reversible error committed in the admission, over objection, of testimony concerning repairs to the traffic light made more than a month before the accident, in view of the prior receipt of similar testimony without objection (cf. St. John’s Coll. v. Ætna Ind. Co., 135 App. Div. 480, 483, mod. on other grounds 201 N. Y. 335; McGuire v. Bonat, 246 App. Div. 547). The trial court, to whom the issues 829 on the city’s cross claim against Welsbach were submitted for decision, properly found that the city was entitled to judgment over against Welsbach. The latter, under its contracts with the city, was under a duty to inspect and service the traffic lights; hence, as to each other, these parties were not in pari delicto (cf. Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 418-419, 420, affd. 298 N. Y. 686; McFall v. Compagnie Maritime Belge, 304 N. Y. 314, 329-330; Burke v. City of New York, 2 N Y 2d 90, 94). Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.