Hay v. Militello

215 A.D. 858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1926
• Status: Published

Opinion

Taylob, J.

(dissenting): If the verdict herein be based upon a finding that the decedent on her way to can pineapples for and at the request of the wife of defendant Charles Fix was either an invitee or employee of the copartnership defendants, such finding has no evidentiary support. The other alternative of possible avail to plaintiff is that Fitzpatrick, employed by the copartnership to drive its automobile in carrying the mail, had either actual or implied authority from his master to permit decedent to ride with him. There is nothing in the record to show such authorization. (Morris v. Brown, 111 N. Y. 318; Bolfe v. Hewitt, 227 id. 486; Carroll v. City of Yonkers, 1,93 App. Div. 655.) At most the decedent was a licensee of the automobile driver and of Charles Fix. The judgment against the copartnership defendants and the order denying them a new trial should be reversed on the law and the facts and a new trial ordered, with costs to the appellants to abide the event.