Barrett v. McNulty — 27 N.Y.2d 928

Majority

p. 928

Clarice A. Barrett, Individually and as Administratrix of the Estate of Richard Barrett, Deceased, Appellant-Respondent, v. Thomas McNulty, Respondent-Appellant, and Hertz Corporation et al., Respondents. John Toner, Respondent, v. Thomas McNulty, Respondent-Appellant, and Hertz Corporation et al., Respondents.

Argued November 11, 1970;

decided December 9, 1970.

p. 929

Leonard Feldman for appellant-respondent.

John P. Walsh and Warren A. Herland for respondent-appellant and for Motor Vehicle Accident Indemnification Corporation.

Benjamin Heller for respondents.

Memorandum. There was uncontradicted evidence that the defendant driver did not have express permission to operate the motor vehicle involved in the accident; and there was no competent evidence from which permission or authority could be inferred. Thus, the presumption of permissive use was overcome and the complaint as against the owner and the lessee was properly dismissed at the close of all the evidence. Evidentiary effect was properly given the proof of defendant operator’s conviction, upon his plea of guilty, of larceny of the vehicle involved; but inasmuch as the evidence required dismissal as against the codefendants, without reference to the proof of the conviction, appellant operator’s contention that he was improperly denied the opportunity to explain his plea became academic and we need not determine whether the rule in that regard obtaining upon proof of traffic infractions (cf. Ando v. Wood-

p. 930

berry, 8 N Y 2d 165 , 171) should be applied in the case of a criminal conviction.

The order should be affirmed, with costs.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Order affirmed, with costs, to defendant-respondents in a memorandum.

Cases cited

Ando v.Woodberry 8 N Y 2d 165 N.Y. 1960-07-08 at 171 p. 930