People v. Schaeffer

253 A.D. 202, 1 N.Y.S.2d 714, 1938 N.Y. App. Div. LEXIS 8396

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1938
• Status: Published

Opinion

Per Curiam.

Defendant was convicted of a violation of the Vehicle and Traffic Law, section 70, subdivision 5-a, which is a misdemeanor and commonly described as “ Leaving the scene of an accident.” The proof adduced on the part of the People indicated that a boy, about four years of age, was playing with a rubber ball on the southerly sidewalk of One Hundred and Fortieth street between St. Ann’s and Cypress avenues, in the Bronx, about three p. m., on Saturday, June twenty-sixth last. The ball went out into the street, the boy gave chase and came in contact with the front right fender of defendant’s car, fell and immediately “ got up and ran away and the car kept going.”

The defendant, who was driving a new car covered by insurance, was proceeding in an easterly direction accompanied by his wife who was sitting alongside of him. She had been treated by a dentist whose office was in the neighborhood, a short distance away. Neither the defendant nor his wife saw the youngster. In fact, both denied that the car had come in contact with him. No claim is made on the part of the People that any one had shouted a warning of any kind. The first knowledge the defendant had of an alleged accident was acquired when he was notified to that effect by the police on the following night.

We are of the opinion that the information should have been dismissed on the ground that there is no evidence in the record that defendant had any knowledge of an accident within the meaning of the section.

The judgment should be reversed, the information dismissed and the fine remitted.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Judgment unanimously reversed, the information dismissed and the fine remitted.