Hood v. Murray, s. 1

• Decision Date: 28 March 1966
• Docket Number: 2,Nos. 1,s. 1
• Citation: 268 N.Y.S.2d 281,25 A.D.2d 163
• Parties: Claud E. HOOD, Appellant, v. Maurice MURRAY et al., Respondents. Henry LITTLE, Appellant, v. Maurice MURRAY et al., Respondents. Action
• Court: New York Supreme Court — Appellate Division

Page 281

268 N.Y.S.2d 281

25 A.D.2d 163

Claud E. HOOD, Appellant, v. Maurice MURRAY et al., Respondents.

Henry LITTLE, Appellant, v. Maurice MURRAY et al., Respondents.

Action Nos. 1, 2.

Supreme Court, Appellate Division, Third Department.

March 28, 1966.

Wager, Taylor, Howd & Brearton, Troy (John P. Taylor, Troy, of counsel), for appellants.

Maynard, O'Connor & Smith, Albany (Arthur R. Flores, Albany, of counsel), for respondents.

Before GIBSON, P.J., and HERLIHY, AULISI and HAMM, JJ.

AULISI, Justice.

This is an appeal from an order of the Supreme Court at Special Term, Rensselaer County, which denied plaintiffs' motion for summary judgment, in actions to recover damages for personal injuries sustained by plaintiffs arising out of an intersection collision between a vehicle owned and operated by plaintiff Hood and one owned by the corporate defendant and driven by the defendant Murray. Plaintiff Little was a passenger in the Hood automobile. While the motion could only be granted on plaintiffs' affirmative showing, we do note that the answering affidavit made by one of defendants' attorneys, is not based upon personal knowledge, is pure hearsay, valueless and must be disregarded (Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184; Cohen v. Pannia, 7 A.D.2d 886, 181 N.Y.S.2d 220). In support of the motion the papers include not only an affidavit from each of the plaintiffs, in which evidentiary facts are alleged from which the proof of defendants' negligence and plaintiffs' freedom from contributory negligence is clear and inescapable but also an affidavit by an eye witness to the accident who asserts 'I observed a light colored station wagon coming toward me going west on State Street going at a fast rate of speed. He had just passed me when I heard a loud screech of brakes and with that I turned to see this light colored station wagon strike a Volkswagen bus which was proceeding through the intersection on First Street. I saw there were two occupants of this Volkswagen bus. When the Volkswagen was struck it was almost through the intersection. The front of the Volkswagen was at the south curb line of State Street, it was struck with such force that it was spun around toward the west. The driver of the light colored station wagon, whom I later learned to be Maurice Murray, one of the defendants above named, got out of his car and went over to the driver of the Volkswagen'.

It is undisputed that Hood was going slowly; that he had the right of way; that he was almost through the intersection when the impact occurred; that the...