Wahler v. Thompson

Decision Date16 November 1962
Citation36 Misc.2d 847,234 N.Y.S.2d 105
PartiesEdna WAHLER and William A. Wahler, of R.D. 5, Penn Yan, New York, Plaintiffs, v. Howard M. THOMPSON, of Bishop Street, Natick, Massachusetts, Kenneth Reynolds and Doris Reynolds, of 14 Porter Road, Natick, Massachusetts, Defendants.
CourtNew York Supreme Court

Albert J. Rubin, Penn Yan, for plaintiffs.

Hiscock, Cowie, Bruce, Lee & Mawhinney, Syracuse, for defendant, Kenneth Reynolds.

J. ROBERT LYNCH, Justice.

The defendant Kenneth Reynolds appears specially and moves to set aside the summons purportedly served on him through service on the Secretary of State under the provisions of section 253 of the Vehicle and Traffic Law.

The essential facts are not in dispute. The moving defendant is the son of the defendant Doris Reynolds. All of the defendants are residents of Massachusetts. On the night of February 21, 1962, Kenneth Reynolds and his companion, the defendant Thompson, took a car owned by Mrs. Reynolds and brought it into New York State. Later that night, at a time when Thompson was driving the car and Reynolds was a passenger, it was involved in the accident near Syracuse which gives rise to this suit.

Section 253 of the Vehicle and Traffic Law states that 'The use or operation by a non-resident of a vehicle in this state * * * shall be deemed equivalent to an appointment by such non-resident 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 non-resident may be involved while using or operating such vehicle in this state'.

We deem it immaterial to this motion to determine whether to not the car was taken without the consent of Mrs. Reynolds. We do not believe it the intent of the Legislature to exclude from jurisdiction a non-resident who has obtained possession criminally and only include jurisdiction of him if he has obtained possession legally. Neither do we deem it material to this motion to determine that Kenneth Reynolds might ultimately be held free of liability as being neither an owner nor an operator.

Conceding that Reynolds was not operating the car at the time of the accident, we deem the only question for determination on this motion is whether or not, under the factual situation pertaining, Reynolds, as a passenger, was using the car at the time of the accident within the meaning of section 253 of the Vehicle and Traffic law.

Prior to July 1, 1958 section 253 of the Vehicle and Traffic Law (then numbered section 52) applied only to a non-resident operating a vehicle. Chapter 568 of the Laws of 1958 amended the section to apply to non-residents using or operating. The note of commission appended to the section recites that it was amended on the recommendation of the Law Revision Commission to extend its application 'to cases where the use of the vehicle in this state, during the course of which the accident occurs, is not technically an 'operation' of the vehicle under the narrow construction given to the term 'operate' by some decisions' (1958 Report of N. Y. Law Rev. Comm., p. 631). (McKinney's Book 62A, Vehicle and Traffic Law, p. 66). Its purpose is to broaden the category of those included in the section beyond those who are literally driving the car (1958 N.Y.Leg.Doc. No. 65H).

It is appropriate to this motion that a particular concern of the Law Revision Commission and one of the reasons it recommended enlarging the statute to include users was the then-existing immunity of a non-resident who while not the owner of the car was nonetheless the operator's principal (1958 Report of N. Y. Law Revision Commission, ...

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5 cases
  • McConnell v. Fireman's Fund Am. Ins. Co.
    • United States
    • New York Supreme Court Appellate Division
    • July 18, 1975
    ......Collins Packing Co., 18 A.D.2d 1068, 239 N.Y.S.2d 398, affd., 14 N.Y.2d 578, 248 N.Y.S.2d 874, 198 N.E.2d 255; Wahler v. Thompson, 36 Misc.2d 847, 234 N.Y.S.2d 105, mod., 26 A.D.2d 895, 274 N.Y.S.2d 862, app. withdrawn, 20 N.Y.2d 765, 284 N.Y.S.2d 72, 230 N.E.2d 718; ......
  • McConnell v. Fireman's Fund American Ins. Co.
    • United States
    • United States State Supreme Court (New York)
    • September 10, 1974
    ......        The words 'use' and 'operation' are not synonymous (Feitelberg v. Matuson, 124 Misc. 595, 208 N.Y.S. 786; Wahler v. Thompson, 36 Misc.2d 847, 234 N.Y.S.2d 105, mod. on other grounds, 26 A.D.2d 895, 274 N.Y.S.2d 862, app. withdrawn, 20 N.Y.2d 765, 284 N.Y.S.2d ......
  • Continental Insurance Company v. Thompson, Civ. No. 70-C-370.
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • March 29, 1972
    ......Wahler v. Thompson, 36 Misc.2d 847, 234 N.Y.S.2d 105 (1962); Black's Law Dictionary, Fourth Edition (1957); Webster's Third New International Dictionary (1961). We cannot say that one who repairs a trailer axle is enjoying or using a motor vehicle.".         State Farm Mut. Auto. Ins. Co. v. Pan ......
  • Yandle v. Hardware Mutual Insurance Company, 17977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 11, 1963
    ......As generally understood, the word "use" means to make use of or to enjoy. See Wahler v. Thompson, 36 Misc.2d 847, 234 N.Y.S.2d 105 (1962); Black's Law Dictionary, Fourth Edition (1957); Webster's Third New International Dictionary ......
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