Schomer v. Windsor Transportation Corp.

Appellate Division of the Supreme Court of New York

Schomer v. Windsor Transportation Corp.

260 A.D. 887, 22 N.Y.S.2d 1010, 1940 N.Y. App. Div. LEXIS 5235

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 28, 1940

StatusPublished

This text of 260 A.D. 887 (Schomer v. Windsor Transportation Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schomer v. Windsor Transportation Corp., 260 A.D. 887, 22 N.Y.S.2d 1010, 1940 N.Y. App. Div. LEXIS 5235 (N.Y. Ct. App. 1940).

Pincite

Opinion

Plaintiff, a passenger in a taxicab owned by defendant Windsor Transportation Corp., was injured when the cab [888]*888collided with a track of defendant Coney Island Dairy Products Corp. At the end of the case the complaint was dismissed as to the first named defendant because the uncontradicted evidence was that the cab was being operated without the permission of the owner. The jury rendered a verdict for defendant Coney Island Dairy Products Corp., and plaintiff appeals. Judgment affirmed, with costs. No opinion. Lazansky, P. J., Carswell, Johnston and Taylor, JJ., concur; Close, J., concurs for affirmance of the judgment as to defendant Coney Island Dairy Products Corp., but as to defendant Windsor Transportation Corp. dissents and votes to reverse the judgment and to grant a new trial, with the following ■ memorandum: The jury might have found that the testimony of Aciemo was discredited by the testimony of Latz and consequently, under the particular circumstances presented here, there was a question of fact for the jury to pass on. In my opinion the testimony of Aciemo was open to a reasonable doubt as to its accuracy and truthfulness, and the court erred in holding as a matter of law that his testimony overcame the presumption created by section 59 of the Vehicle and Traffic Law.

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Plaintiff, a passenger in a taxicab owned by defendant Windsor Transportation Corp., was injured when the cab [888]*888collided with a track of defendant Coney Island Dairy Products Corp. At the end of the case the complaint was dismissed as to the first named defendant because the uncontradicted evidence was that the cab was being operated without the permission of the owner. The jury rendered a verdict for defendant Coney Island Dairy Products Corp., and plaintiff appeals. Judgment affirmed, with costs. No opinion. Lazansky, P. J., Carswell, Johnston and Taylor, JJ., concur; Close, J., concurs for affirmance of the judgment as to defendant Coney Island Dairy Products Corp., but as to defendant Windsor Transportation Corp. dissents and votes to reverse the judgment and to grant a new trial, with the following ■ memorandum: The jury might have found that the testimony of Aciemo was discredited by the testimony of Latz and consequently, under the particular circumstances presented here, there was a question of fact for the jury to pass on. In my opinion the testimony of Aciemo was open to a reasonable doubt as to its accuracy and truthfulness, and the court erred in holding as a matter of law that his testimony overcame the presumption created by section 59 of the Vehicle and Traffic Law.

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Bluebook (online)

260 A.D. 887, 22 N.Y.S.2d 1010, 1940 N.Y. App. Div. LEXIS 5235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schomer-v-windsor-transportation-corp-nyappdiv-1940.