Gitlin v. Pintov

Appellate Terms of the Supreme Court of New York

Gitlin v. Pintov

35 Misc. 2d 441, 227 N.Y.S.2d 939, 1962 N.Y. Misc. LEXIS 3606

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 28, 1962

StatusPublished

This text of 35 Misc. 2d 441 (Gitlin v. Pintov) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gitlin v. Pintov, 35 Misc. 2d 441, 227 N.Y.S.2d 939, 1962 N.Y. Misc. LEXIS 3606 (N.Y. Ct. App. 1962).

Pincite

Opinion

Per Curiam.

The act of appellant’s night man in leaving its garage premises with a customer’s automobile for the purpose of obtaining coffee was not an act within the scope of his employment so as to render appellant liable for its employee’s negligence and the consequent damage to plaintiff’s parked automobile (Restatement, Agency, § 229, subd. [2], par. [c]; 57 C. J. S., Master and Servant, § 570; Rosenberg v. Syracuse Newspapers, 248 App. Div. 294). There is not a scintilla of proof that the taking of the customer’s automobile was with appellant’s authorization or consent. The uncontradicted evidence establishes that such employee had in fact abandoned his employment at the time of the occurrence (Ford v. Grand Union Co., 268 N. Y. 243; Sauter v. New York Tribune, 305 N. Y. 442).

While appellant has merely asked for a new trial herein, we are disposed to dismiss the complaint since all available facts are in the record and no useful purpose would be served by a new trial (cf. Grace v. Dry Dock Sav. Bank, 3 A D 2d 556).

[442]*442The judgment, insofar as it is against appellant Nostrand & Empire Garage, Inc., should be unanimously reversed, with $30 costs to appellant and complaint dismissed with appropriate costs in the court below.

Concur — Hart, Brown and Benjamin, JJ.

Judgment reversed, etc.

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Per Curiam.

The act of appellant’s night man in leaving its garage premises with a customer’s automobile for the purpose of obtaining coffee was not an act within the scope of his employment so as to render appellant liable for its employee’s negligence and the consequent damage to plaintiff’s parked automobile (Restatement, Agency, § 229, subd. [2], par. [c]; 57 C. J. S., Master and Servant, § 570; Rosenberg v. Syracuse Newspapers, 248 App. Div. 294). There is not a scintilla of proof that the taking of the customer’s automobile was with appellant’s authorization or consent. The uncontradicted evidence establishes that such employee had in fact abandoned his employment at the time of the occurrence (Ford v. Grand Union Co., 268 N. Y. 243; Sauter v. New York Tribune, 305 N. Y. 442).

While appellant has merely asked for a new trial herein, we are disposed to dismiss the complaint since all available facts are in the record and no useful purpose would be served by a new trial (cf. Grace v. Dry Dock Sav. Bank, 3 A D 2d 556).

[442]*442The judgment, insofar as it is against appellant Nostrand & Empire Garage, Inc., should be unanimously reversed, with $30 costs to appellant and complaint dismissed with appropriate costs in the court below.

Concur — Hart, Brown and Benjamin, JJ.

Judgment reversed, etc.

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Bluebook (online)

35 Misc. 2d 441, 227 N.Y.S.2d 939, 1962 N.Y. Misc. LEXIS 3606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gitlin-v-pintov-nyappterm-1962.

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