257 A.D. 71, Rathfelder v. Flag

• Citation: 257 A.D. 71, 12 N.Y.S.2d 136
• Party Name: GOTTLIEB C. RATHFELDER, Respondent, v. LEVI FLAG, Appellant, Impleaded with THEODORE RING, Defendant.
• Case Date: May 19, 1939
• Court: New York Supreme Court Appelate Division, First Department

Page 71

257 A.D. 71

12 N.Y.S.2d 136

GOTTLIEB C. RATHFELDER, Respondent,

v.

LEVI FLAG, Appellant, Impleaded with THEODORE RING, Defendant.

Supreme Court of New York, First Department.

May 19, 1939

Page 72

APPEAL by the defendant Levi Flag from a judgment of the Supreme Court, entered in the office of the clerk of the county of Bronx on the 19th day of April, 1938.

COUNSEL

Walter G. Evans of counsel [Alexander Orr, Jr., with him on the brief; Evans & Rees, attorneys], for the appellant.

James I. Cuff of counsel [James I. McGuire with him on the brief], for the respondent.

O'MALLEY, J.

Prima facie proof that the truck was owned and controlled by the defendant Flag and that its operator was engaged in said defendant's business was established by the license plates concededly the property of defendant-appellant. (Ferris v. Sterling, 214 N.Y. 249, 253.)

This proof, however, was fully overcome by the defendant's evidence. It showed that defendant was engaged in the garage business and also dealt in second-hand cars in North Dana, Mass. William Lucia occasionally sold cars for him on commission and in this connection at times had dealer's license plates belonging to defendant in his possession.

A short time prior to the accident, which occurred in New York city on December 13, 1933, William Lucia had in his possession a Dodge coupe belonging to defendant for the purpose of sale. It had on it the defendant's license plates.

The truck which caused the accident (herein called 'International') had been bought some three weeks prior to the accident from an agency in Worcester, Mass., by Gerald Lucia, a son of William, who was engaged in the trucking business in Orange, Mass., under the name of the L & L Trucking Company.

Shortly before the accident, Gerald Lucia had sent his employee Ring to New York in another truck. This truck had broken down. Ring attempted to summon help from his employer late in the evening of December 12, 1933. The latter, not being home when Ring telephoned, his father, William Lucia, without defendant's knowledge or permission, took the plates from the Dodge coupe and put them on the International truck belonging to the trucking company and drove to New York. On reaching there, he turned this truck over to Ring, who used it for the purpose of securing parts to equip the truck which had broken down...