Emery v. McCombs

180 A.D. 225, 167 N.Y.S. 474, 1917 N.Y. App. Div. LEXIS 8098

Opinion

Jenks, P. J.:

The action is for negligence in the driving by defendant Connell of a motor car owned by defendant McCombs. Connell was the keeper of a garage, and McCombs theretofore had put the car in the possession of Connell, either as a prospective buyer of the car, or of a factor or sales agent. At the time of the casualty Connell was driving the car for demonstration. There was no relation of.master and servant or any other relation shown that justified the imputation of Connell’s negligence to McCombs. The defendant Connell did not appeal from the judgment. As to the defendant McCombs, the majority of my associates vote to dismiss the complaint, but Mr. Justice Putnam and I vote for a new trial.

The judgment and order should be reversed and-the complaint dismissed, with costs, as to defendant McCombs.

Thomas, Mills and Blackmar, JJ., concurred; Putnam, J., concurred for reversal; Jenks, P. J., and Putnam, J., voted for a new trial.

Judgment and order reversed and complaint dismissed, with costs, as to the defendant McCombs.