267 A.D. 387, Le Roy v. Tremper

Citation267 A.D. 387, 46 N.Y.S.2d 30
Party NameCHRISTINA LEROY, as Administratrix under Limited Letters of Administration of the Estate of JOHN LEROY, Deceased, Appellant, v. RUTH G. TREMPER et al., as Executors of HAROLD O. TREMPER, Deceased, et al., Respondents, et al., Defendants.
Case DateJanuary 31, 1944
CourtNew York Supreme Court Appelate Division, Second Department

Page 387

267 A.D. 387

46 N.Y.S.2d 30

CHRISTINA LEROY, as Administratrix under Limited Letters of Administration of the Estate of JOHN LEROY, Deceased, Appellant,

v.

RUTH G. TREMPER et al., as Executors of HAROLD O. TREMPER, Deceased, et al., Respondents, et al., Defendants.

Supreme Court of New York, Second Department.

January 31, 1944

APPEAL from a judgment of the Supreme Court, Kings County, in favor of defendants-respondents, entered November 6, 1941, upon a dismissal of the complaint by the court at a Trial Term (SWEZEY, J.), at the close of the entire case. The notice of appeal states that an appeal is also taken from an 'order' which granted a motion by defendants-respondents for a dismissal of the complaint.

Plaintiff seeks to recover for the death of her intestate who was struck by an automobile bearing license plates issued to and owned by defendants-respondents.

COUNSEL

Myron Wisoff and William S. Butler for appellant.

William B. Davis and E. C. Sherwood for respondents.

Per Curiam.

The proof that license plates, the property of respondents, were upon the car concerned in the accident established

Page 388

prima facie that the automobile was owned and controlled by them and that the operator was engaged in their business at the time. (Ferris v. Sterling, 214 N.Y. 249.) This proof, however, was fully and completely overcome by respondents' evidence, which showed that the car was not then and never had been owned by them; that it was owned and operated by defendant Harold Barton; that defendant Alfred Barton, who was employed by respondents as a handy man, took the license plates from the place of business of his employers without consent; and that the automobile was not operated in the business of the respondents.

If it be assumed that the plates were loaned to the owner of the car with the consent of the respondents, or that there was an issue as to that fact, the uncontradicted affirmative proof is that the car was not under the control nor operated in the business of respondents.

In this State one who lends his license plates is not liable, merely by reason of such loan...

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