Steiner v. Rafanieczus

173 Misc. 423, 18 N.Y.S.2d 41, 1939 N.Y. Misc. LEXIS 2715

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 14, 1939
• Status: Published

Opinion

Per Curiam.

Judgment and order in so far as it affects the corporate defendant unanimously reversed upon the law, and new trial granted, with thirty dollars costs to that defendant to abide the event.

The action was to recover property damage resulting from a collision between plaintiff’s car and a truck owned by the corporate defendant and operated by the individual defendant. The jury, contrary to instructions and to the law, found a verdict against the corporate defendant and in favor of the individual defendant. The verdict was set aside and thereafter reinstated upon the consent of the individual defendant that a verdict be directed against him in the same amount as found by the jury against the corporate defendant. The verdict effectuated an inconsistent result. The corporate defendant’s liability was purely of a derivative or secondary character. Having exonerated the individual defendant, its employee, the jury should have rendered a verdict in favor of the corporate defendant. The inconsistency could not be cured by the consent of the individual defendant that a verdict be directed against him.

Present — MacCrate, Lewis and Smith, JJ.