The judgment and order appealed from will be affirmed, with costs, upon the grounds stated in the opinion in action No. 2, between the same parties (149 App. Div. 622), and upon the further ground that under the amended pleadings in this action defendant claimed that it had given notice to make the repairs in question to the Barber Asphalt Company as assignee of the Warren-Scharf Asphalt Paving Company. It was the defendant’s contention that the Barber Company was acting as such assignee, but it utterly failed to sustain its contention by proof, and the verdict was, therefore, properly directed.
*633The judgment and order appealed from are, therefore, affirmed, with costs to respondent.
Ingraham, P. J., McLaughlin and Miller, JJ., concurred.