On appeal from the Supreme Court.
For the appellants, Harry Weltchek.
For the respondent Friedman, William H. D. Cox and Harry E. Walburg.
The opinion of the court was delivered by
PARKER, J. Lila Rinaldi and her father, Peter, were riding as passengers in an automobile belonging to the corporation De Salvo & Sons and driven by Anthony De Salvo, secretary of that corporation and son of its president. There was a collision with a car belonging to defendant Friedman, in which apparently he was riding, and, as alleged, driven by his servant or agent. Lila and Peter were injured. Both were plaintiffs in a suit begun February 5th, 1930, in which the complaint contained nine counts. Before trial, Peter died, and the counts wherein he claimed in his own right were in some way eliminated, but his widow, Carmela, began suit
December 1st, 1931, claiming damages as general administratrix of Peter against both the De Salvo corporation and Friedman: and claiming damages against both, as administratrix ad prosequendum, on the ground that the death of Peter was due to the negligence of the servant of the corporation and also of the servant of the defendant Friedman. The complaint contained four counts as presently to be specified.
In the earlier suit only two of the nine counts were pressed at the trial, both of which related to Lila. She married the junior De Salvo before the trial, but that made no essential change in the legal situation.
In the earlier suit two claims were tried:
No. 1, Lila against the De Salvo corporation. This resulted in the trial judge ordering a nonsuit.
No. 2, Lila against Friedman. Nonsuit was moved and denied, and one of the briefs informs us that the jury disagreed and were discharged. The printed book shows nothing by way of final determination of claim No. 2.
In the second suit four claims were tried:
No. 3, by the general administratrix of Peter against the De Salvo corporation for money damage to Peter in ...