In this action for personal injuries, the judgment entered April 2, 1964 is unanimously modified in the following respects: That part of the judgment awarding plaintiff the sum of $79,390.92 against defendant-appellant-respondent Raymond Kramer, Inc., is reversed, on the law, with $50 costs to said defendant, and the complaint dismissed as to it on the ground there is an insufficient showing of a special use. In so deciding we do not reach the question of actual or constructive notice as to said defendant. That part of the judgment in favor of plaintiff against defendant-appellant the City of New York and defendant-appellant-respondent Jacob Blumenson, as executor of the estate of Doris Blumenson, is reversed, on the law and on the facts, and a new trial granted, unless plaintiff stipulates to accept $40,000 in lieu of the award by verdict, in which event this part of the judgment is modified to that extent, and as so modified, affirmed, with $50 costs to said defendants. It is evident the jury verdict is excessive in its award of damages and that a verdict in excess of $40,000 is not warranted by the record. The judgment as so modified, including the dismissal of the cross complaint of defendant-appellant the City of New York against defendants-appellants-respondents Raymond Kramer, Inc., and Jacob Blumenson, as executor of the estate of Doris Blumenson, and the dismissal of the cross complaints of said defendants-appellants-respondents, is otherwise affirmed, without costs. Settle order on notice. Concur — Breitel, J. P., Rabin, McNally, Steuer and Witmer, JJ.