Judgment entered July 8, 1955, insofar as appealed from and order affirmed, without costs of this appeal to either party; judgment entered August 15, 1955, reversed, on the law and facts, with costs, and matter remitted to the Supreme Court of Erie County to permit application by plaintiff for judgment as upon a default. Memorandum: The negligence of the defendant Simon, who defaulted in appearing, was clearly established by uncontroverted evidence. The judgment as to this defendant should be reversed and the case remitted to the Supreme Court for application by plaintiff for judgment as upon a default. All concur.