Winnowski v. Polito

267 A.D. 849, 45 N.Y.S.2d 747, 1944 N.Y. App. Div. LEXIS 5090

Opinion

— Appeals from judgments and orders of the County Court of Albany County affirming judgments of the City Court of the City of Albany in favor of the plaintiffs. The actions are for injuries sustained by plaintiffs Hora Witko and Harriet Winnowski when an automobile owned by defendant and driven by his son ran on a sidewalk and struck them. Defendant had “ double parked ” his car on Central Avenue in the city of Albany with another car parked between defendant’s car and the curb. He left the car in gear, the key in the switch, and his fifteen-year-old son seated in the back seat, and with his wife went into a store to trade. A policeman directed the boy to move the ear into a space close to the curb so that another car could get in. The boy replied that he did not have a license and did not know how to drive, but the policeman repeated his order to the boy to move the car. The boy started the motor and the car ran up on the sidewalk and struck the women. It is not disputed that the defendant had never given permission of any sort to the boy to drive the car and had expressly instructed him not to. This was testified to by both the boy and his father and was not in any respect contradicted. The complaints should have been dismissed on the authority of St. Andrassy v. Mooney (262 H. Y. 368). Judgments and orders of the Albany County Court and judgment of the City Court of the City of Albany reversed on the law and complaints dismissed, with costs. Hill, P. J., Bliss and Heffernan, JJ., concur; Sehenek, J., dissents. [See post, p. 927.]