Brown v. Hertz Drivurself Stations
Citation | 203 Misc. 728 |
Parties | Harry Brown, Plaintiff,<BR>v.<BR>Hertz Drivurself Stations, Incorporated, Eastern States, Defendant. |
Decision Date | 23 September 1952 |
Court | United States State Supreme Court (New York) |
John W. Trapp for defendant appearing specially.
Herman Nash for plaintiff.
Defendant, a nonresident corporation, moves to vacate the constructive service of process on it purportedly effected pursuant to the provisions of section 52 of the Vehicle and Traffic Law. This statute provides that "the operation in this state of a motor vehicle * * * owned by a nonresident * * * with his consent, express or implied, shall be deemed equivalent to an appointment by such nonresident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision * * * in which such motor vehicle * * * may be involved while being operated in this state".
The motion is predicated on defendant's contention that since it appears from the complaint that defendant's vehicle was not "being operated" at the time of the accident, the statute has no application.
The complaint in substance states that plaintiff rented a truck from defendant in Philadelphia for the purpose of permitting plaintiff to transport furniture to New York City; that the said vehicle was in an unsafe condition and that defendant negligently permitted a metal ledge on the rear part thereof to be raised so as to constitute a trap and that while plaintiff was "driving and operating the said motor vehicle truck and making a furniture delivery at or near 42 East 11th Street * * * because of the defective and dangerous and unsafe condition * * * plaintiff was violently precipitated off the truck" as a result of which he sustained personal injuries.
Upon the hearing of this motion plaintiff's counsel submitted an affidavit in which he states that plaintiff did not park for the purpose of making a delivery but to shift the "cargo preparatory to picking up a number of pieces of furniture."
Under either statement of facts the court concludes that defendant's vehicle at the time of the accident was not "being operated" within the meaning of section 52.
Statutes such as section 52 in derogation of the common law are to be strictly construed (McKinney's Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 301) and "The language of the statute must be read in the light of what it was intended to accomplish" (Matter of Guardian Life Ins. Co. v. Chapman, 302 N.Y. 226, 235).
As quoted in McKinney's Consolidated Laws of New York (Book 1, Statutes [1942 ed.], § 95) from Kent's Commentaries (Vol. 1, p. 462) the intent with which statutes were enacted "is to...
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Kennelly v. SECORD TRANSPORTATION CO.
...or cases where the use or operation of a motor vehicle within the meaning of the statute was found wanting. Brown v. Hertz Drivurself Stations, 1952, 203 Misc. 728, 116 N.Y.S.2d 412; De Luca v. Consolidated Freight Lines, D.C.E.D.N.Y.1955, 132 F.Supp. 863. The cases above do not give a sing......
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Aranzullo v. Collins Packing Co.
...(1958 Law Revision Report, page 648, citing Mulligan v. Jersey Truck Renters, 196 Misc. 828, 95 N.Y.S.2d 232; Brown v. Hertz Drivurself Stations, 203 Misc. 728, 116 N.Y.S.2d 412; DeLuca v. Consolidated Freight Lines, D.C., 132 F.Supp. 863.) So, the Commission recommended the 1958 amendments......
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Mcdonald v. Superior Court
...the courts, without exception, have held that such statutes do not apply to such a factual situation. In Brown v. Hertz Drivurself Stations, 203 Misc. 728, 116 N.Y.S.2d 412, 413, a truck was rented in Philadelphia for the purpose of hauling furniture into New York City. The truck was defect......
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Argentina v. EMERY WORLD WIDE
...of NY Law Rev Commn, at 648, 1958 NY Legis Doc No. 65 [H], at 22, citing Mulligan v Jersey Truck Renters, 196 Misc 828; Brown v Hertz Drivurself Stas., 203 Misc 728; DeLuca v Consolidated Frgt. Lines, 132 F Supp In order to forestall further narrow readings of "operation," the Commission re......