Roberts v. Schanz

83 Misc. 139, 144 N.Y.S. 824

Opinion

Guy, J.

This action was brought to recover for a personal injury sustained by plaintiff from being run down by defendant’s automobile while, it is alleged, it was being driven at an excessive speed by defendant’s niece, with defendant’s “ knowledge, consent and approval. ’’

The answer admits the operation of the automobile by defendant’s niece, but denies that it was being operated by defendant or by any one in his employ or under his control.

Plaintiff’s evidence as to the happening of the accident was not sufficient to charge the driver of the machine with negligence, even if defendant were responsible therefor. The evidence, however, is that the driver, a niece of the defendant, residing in his household, was not operating the machine for the general purposes, or any special purpose, of the defendant, but for her own purposes. Defendant could not, therefore, be held liable for her negligence, even had such negligence been proven. Maher v. Benedict, 123 App. Div. 579, 580; Cunningham v. Castle, 127 id. 580, 586-588; Douglass v. Hewson, 142 id. 166, 168; Doran v. Thomsen, 76 N. J. L. 754.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.