Moriarity v. Shyne

244 A.D. 868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1935
• Status: Published

Opinion

Appeal by defendant from a judgment of a Trial Term of the Supreme Court, Albany county, entered upon the verdict of a jury, for damages in a negligence action. The plaintiff, a passenger, was injured while riding in an automobile owned by the defendant and driven by one Louis Spring. The plaintiff testified that he had an arrangement with the owner of the ear as to its use; that he, plaintiff, paid for the upkeep, gas and oil therefor and used it “ any time I wanted to ” in the business of selling monuments for defendant “ and at times for my own diversion.” The complaint alleges that said automobile was being driven with the permission and consent of defendant. This allegation is not denied by the answer. The court, in his charge, stated that the owner “ says ” that Spring had permission to operate the car. This was not excepted to. Appellant urges reversal on the ground that while Spring had permission of defendant to drive the car defendant did not know Spring “ was going to carry the plaintiff therein to Troy, and had not given his consent thereto.” Appellant further argues that the plaintiff and Spring were engaged at the time of the accident in a joint undertaking. Plaintiff was a passenger on the trip, bis purpose being to visit his brother to obtain employment. Judgment unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, McNamee, Bliss and Heffernan, JJ.