DiCarlo v. Feldman

246 A.D. 682

Opinion

Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event. Memorandum. If the trial court had sent the case to the jury, we may assume that he would have correctly charged that there could be no recovery against the appellant because of a defective condition of the accelerator which was unknown to the owner — but that a recovery by plaintiff might be based upon a finding sufficiently supported by proof that under the physical conditions presented the driver of the car did not have it under proper control. In the circumstances the case of Galbraith v. Busch (267 N. Y. 230) is not controlling in favor of respondent and the nonsuit should not have been granted. All concur. (The judgment was for defendant by direction of the court in an automobile negligence action.) Present — Sears, P. J., Taylor, Edgcomb, Crosby and Lewis, JJ.