Stelling v. Public Lumber Supply Co.

Appellate Division of the Supreme Court of New York

Stelling v. Public Lumber Supply Co.

3 A.D.2d 713, 159 N.Y.S.2d 459, 1957 N.Y. App. Div. LEXIS 6534

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

DecidedFebruary 4, 1957

StatusPublished

This text of 3 A.D.2d 713 (Stelling v. Public Lumber Supply Co.) 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

Stelling v. Public Lumber Supply Co., 3 A.D.2d 713, 159 N.Y.S.2d 459, 1957 N.Y. App. Div. LEXIS 6534 (N.Y. Ct. App. 1957).

Pincite

Opinion

In an action to recover damages for injuries to person and property, the appeal is from a judgment of the County Court, Nassau County, dismissing the complaint upon the merits after trial before the court without a jury. Appellants, partners and owners of a truck, allegedly were injured and the truck damaged when it came into contact with an obstruction at the entrance to respondent’s premises. At the time of the accident the vehicle was being operated on partnership business by appellant Stacel, the appellant Stelling being seated beside him. The complaint was dismissed on the ground that appellants had failed to establish their freedom from contributory negligence. Judgment unanimously affirmed, with costs. In our opinion, there was ample proof to sustain a finding that Stacel, the operator of the truck, had not established freedom from contributory negligence. Stacel’s negligence was imputable to Stelling, who was present in the vehicle and engaged in a joint enterprise with him. (Schron v. Staten Island Elec. R. R. Go., 16 App. Div. Ill; Gass v. Third Ave. R. R. Co., 20 App. Div. 591; Restatement, Torts, §§ 485, 491.) Jenks v. Veeder Gontr. Go. (177 Mise. 240, mod. 264 App. Div. 979, affd. 290 N. Y. 810) is not authority to the contrary. The effect of a joint venture on the question of imputing negligence was not there presented for review on appeal, as it appears that there was no request to have the [714]*714jury pass upon the question of whether there was such joint venture between the parties. (Of. McCormack v. Nassau Elec. B. B. Co., 16 App. Div. 24.) Present — Nolan, P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ. [See post, p. 764.]

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In an action to recover damages for injuries to person and property, the appeal is from a judgment of the County Court, Nassau County, dismissing the complaint upon the merits after trial before the court without a jury. Appellants, partners and owners of a truck, allegedly were injured and the truck damaged when it came into contact with an obstruction at the entrance to respondent’s premises. At the time of the accident the vehicle was being operated on partnership business by appellant Stacel, the appellant Stelling being seated beside him. The complaint was dismissed on the ground that appellants had failed to establish their freedom from contributory negligence. Judgment unanimously affirmed, with costs. In our opinion, there was ample proof to sustain a finding that Stacel, the operator of the truck, had not established freedom from contributory negligence. Stacel’s negligence was imputable to Stelling, who was present in the vehicle and engaged in a joint enterprise with him. (Schron v. Staten Island Elec. R. R. Go., 16 App. Div. Ill; Gass v. Third Ave. R. R. Co., 20 App. Div. 591; Restatement, Torts, §§ 485, 491.) Jenks v. Veeder Gontr. Go. (177 Mise. 240, mod. 264 App. Div. 979, affd. 290 N. Y. 810) is not authority to the contrary. The effect of a joint venture on the question of imputing negligence was not there presented for review on appeal, as it appears that there was no request to have the [714]*714jury pass upon the question of whether there was such joint venture between the parties. (Of. McCormack v. Nassau Elec. B. B. Co., 16 App. Div. 24.) Present — Nolan, P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ. [See post, p. 764.]

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Bluebook (online)

3 A.D.2d 713, 159 N.Y.S.2d 459, 1957 N.Y. App. Div. LEXIS 6534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stelling-v-public-lumber-supply-co-nyappdiv-1957.

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