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  5. 24 N.Y.2d 845 (1969)
 

WEINER v. SERPS AUTO WRECKERS, INC.

24 N.Y.2d 845 (1969)

Stuart Weiner, an Infant, by His Guardian ad Litem, Mildred Weiner, et al., Respondents, v. Serps Auto Wreckers, Inc., et al., Appellants.

Court of Appeals of the State of New York.

Decided April 10, 1969.

Attorney(s) appearing for the Case

J. Lee Rankin, Corporation Counsel (Alfred Weinstein and Stanley Buchsbaum of counsel), for City of New York, appellant.

John J. Bradbury and J. Robert Morris for Serps Auto Wreckers, Inc. and another, appellants.

Jacob D. Fuchsberg, Seymour Fuchsberg and Elliot F. Topper for respondents.

Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING, BREITEL and JASEN concur.

MEMORANDUM.

The judgment appealed from should be modified by directing a new trial as to defendant City of New York, with costs to abide the event; and otherwise affirmed, with costs to plaintiffs against defendants Serps Auto Wreckers, Inc. and Simon. The liability of the city depends entirely on the acceptance of defendant Simon's testimony that a hole in the pavement caused the breaking away of the car he was towing and...

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