Rubin v. Bierman

Appellate Terms of the Supreme Court of New York

Rubin v. Bierman

87 Misc. 174, 149 N.Y.S. 483

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1914

StatusPublished

Cited by3 cases

This text of 87 Misc. 174 (Rubin v. Bierman) 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

Rubin v. Bierman, 87 Misc. 174, 149 N.Y.S. 483 (N.Y. Ct. App. 1914).

Pincite

Opinion

Bijur, J.

The plaintiff did not oppose the motion, nevertheless, the learned judge below denied it on the ground that the pleadings raised a- good issue. The complaint alleges that the plaintiff was injured by the careless operation of an automobile owned by the defendant, and that the same at the time of the accident was operated by a chauffeur who is named. [175]*175Respondent’s citation of McCann v. Davison, 145 App. Div. 522, is not in point. That case holds merely that proof of ownership gives rise to a presumption of control. The case at bar is concerned with pleadings. It is not denied that defendant is sought to be held liable not because of his ownership of the automobile, but because at the time of the accident he was in operation or control thereof either in person or by his servant. This, however, is not alleged. On the contrary, plaintiff seems to have studiously avoided the allegation that the chauffeur in operation thereof at the time of the accident was the servant of the defendant.

In view of the pleader’s failure to insert the necessary allegation, and, indeed, of the plain intimation that he purposely avoided the making thereof, the complaint fails to state a good cause of action.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and complaint dismissed.

Seabury and Cohalan, JJ., concur.

Order reversed, with ten dollars costs and disbursements.

Free access — add to your briefcase to read the full text and ask questions with AI

Bijur, J.

The plaintiff did not oppose the motion, nevertheless, the learned judge below denied it on the ground that the pleadings raised a- good issue. The complaint alleges that the plaintiff was injured by the careless operation of an automobile owned by the defendant, and that the same at the time of the accident was operated by a chauffeur who is named. [175]*175Respondent’s citation of McCann v. Davison, 145 App. Div. 522, is not in point. That case holds merely that proof of ownership gives rise to a presumption of control. The case at bar is concerned with pleadings. It is not denied that defendant is sought to be held liable not because of his ownership of the automobile, but because at the time of the accident he was in operation or control thereof either in person or by his servant. This, however, is not alleged. On the contrary, plaintiff seems to have studiously avoided the allegation that the chauffeur in operation thereof at the time of the accident was the servant of the defendant.

In view of the pleader’s failure to insert the necessary allegation, and, indeed, of the plain intimation that he purposely avoided the making thereof, the complaint fails to state a good cause of action.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and complaint dismissed.

Seabury and Cohalan, JJ., concur.

Order reversed, with ten dollars costs and disbursements.

Cite This Page — Counsel Stack

Bluebook (online)

87 Misc. 174, 149 N.Y.S. 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubin-v-bierman-nyappterm-1914.

Opinion

Related

Cite This Page — Counsel Stack