Majority
p. 801First Department, January, 1925. Patrick Flatley, Respondent, v. Gladys Dore, Defendant, Impleaded with David Bennett, Appellant.
Headnote
Motor vehicles — action by resident of New Jersey to recover damages for injuries suffered when plaintiff was struck by defendant’s automobile in New Jersey — automobile was being driven by third person not on defendant’s business — defendant is not liable.Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the New York county clerk’s office January 16, 1924, upon the verdict of a jury for $3,000, rendered after a trial at the New York Trial Term, and also from an order entered January 15, 1924, denying a motion for a new trial.
The accident happened on September 2, 1918. near a street intersection in the city of Long Branch, in the State of New Jersey. Plaintiff is and was a resident of New Jersey. Defendants are and were residents of the State of New York.
Even if it could be fairly presumed from the evidence that Miss Dore had defendant Bennett’s permission to use his car, which is denied, this would not be sufficient to make the latter liable. The accident occurred while the defendant Bennett’s automobile was being driven by Miss Dore, admittedly, not on the business of Bennett, but for her own pleasure and enjoyment. The defendant is, therefore, not liable. (Fallon v. Swackhamer, 226 N. Y. 444 : Reilly v. Connable, 214 id. 586, 590 .) The judgment and order appealed from should be reversed, with costs, and the complaint dismissed, with costs. Present •—• Clarke, P. J., Merrell, Finch, Martin and Burr, JJ. Judgment and order reversed, with costs, and complaint dismissed, with costs.
Cases cited
- Fallon v. Swackhamer 226 N. Y. 444 p. 801