262 N.Y. 368, St. Andrassy v. Mooney

Citation262 N.Y. 368
Party NameSt. Andrassy v. Mooney
Case DateJuly 11, 1933
CourtNew York Court of Appeals

Page 368

262 N.Y. 368

BERTHA ST. ANDRASSY et al., Respondents,

v.

JAMES D. MOONEY, Appellant, Impleaded with Another.

New York Court of Appeal

July 11, 1933

Argued June 6, 1933.

Page 369

COUNSEL

James A. Nooney and Ralph O. L. Fay for appellant. The proof failed to establish that at the time of the accident the automobile was being operated with the consent of the owner. ( Chaika v. Vandenberg, 252 N.Y. 101; Potts v. Pardee, 220 N.Y. 431; Rose v. Balfe, 223 N.Y. 481; Fallon v. Swackhamer, 226 N.Y. 444; Der Ohannessian v. Elliott, 233 N.Y. 326; Powers v. Wilson, 203 A.D. 232; Perlmutter v. Byrne, 193 A.D. 769; Hanrahan v. New York Edison Co., 238 N.Y. 194; Moore v. Rosenmond, 238 N.Y. 356; Kraus v. Fifth Ave. Coach Co., 233 A.D. 357.) General authority granted to a chauffeur to use his employer's automobile in the business of the owner does not constitute consent, express or implied, to operate it at a different time or place for the chauffeur's personal purposes. ( Chaika v. Vandenberg, 252 N.Y. 101; Psota v. Long Island R. R. Co., 246 N.Y. 388; Arcara v. Moresse, 258 N.Y. 211; Byrne v. Mendelson, 210 A.D. 5; Schwartz v. Lawrence, 214 A.D. 559; Ermann v. Kahn, 229 A.D. 693; 255 N.Y. 627; Thompson v. Morgan, 224 A.D. 691; Marconi v. Becci, 223 A.D. 858; Aspinall v. City of N.Y. , 221 A.D. 753; Downing v. City of N.Y. , 219 A.D. 444; Calver v. Crowell, 211 A.D. 199; Schwartz v. Lawrence, 214 A.D. 559; Kelly v. City

Page 370

of Niagara Falls, 131 Misc. 934; Atwater v. Lober, 133 Misc. 652.)The failure of the original answer to deny the allegation of defendants' consent to the operation of the car by the chauffeur 'on or about the 15th day of June, 1931, ' did not constitute an admission of consent to operate it at the time of the accident. ( Ranken v. Probey, 136 A.D. 134; Levy v. Delaware, L. & W. R. R. Co., 211 A.D. 503.)

L. H. Schleider and J. M. Cohen for respondents. The substantial evidence called for to dispel the permission was not offered either by the owner, his wife, or the chauffeur. ( Orser v. Orser, 24 N.Y. 51; Stein v. Mendetz, 125 A.D. 561; Wiemers, Inc. v. American Fidelity Co., 181 A.D. 774; Chaika v. Vandenberg, 252 N.Y. 101; Orlando v. Pioneer B. T. Supply Co., 239 N.Y. 342; Glasgow v. Weldt, 218 A.D. 749.) The jury had a right to reject the explanation of defendant's attorney that the admission in the answer was made through an honest mistake and find that, according to the original answer, the chauffeur was using the car with the defendant's consent. ( Keller v. Morton, 63 Misc. 340; Levy v. Delaware, L. & W. R. R. Co., 211 A.D. 503; Kermeule v. City of Corning, 186 A.D. 206; Herzfeld v. Reinach, 50 N.Y.S. 658; Matter of Barlow, 141 A.D. 640; Graves v. Utica Candy Co., 209 A.D. 193.)

LEHMAN, J.

The plaintiffs have recovered judgments for injuries suffered in a collision between a taxicab in which they were riding and an automobile owned by the defendant Mooney and driven by a chauffeur in his employ. The defendant Mooney does not on this appeal question that the evidence is sufficient to sustain a finding that the collision occurred through the negligence of his chauffeur, but urges that the chauffeur was driving the automobile without his employer's authority or permission.

Proof of ownership is sufficient to establish prima facie that a custodian operating the car is engaged in the

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owner's service. ( Ferris v. Sterling, 214 N.Y. 249.)From such proof 'a...

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