Callahan v. Oltarsh — 109 N.Y.S. 753

Majority

p. 753

CALLAHAN v. OLTARSH.

(Supreme Court, Appellate Term.

April 10, 1908.)

Headnote

Master and Servant—Injuries to Persons—Persons Liable.

In an action for injuries to plaintiff by the alleged negligence of the driver of a truck, evidence held to show that the driver was in the employ of a corporation operated by defendant, and not by defendant individually.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1272.]

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Joseph Callahan against David M. Oltarsh. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and SEABURY and DAYTON, JJ.

Frankelthaler & Sapinsky (Joseph Sapinsky, of counsel), for appellant.

James E. Duross, for respondent.

The evidence is clear that “David M. Oltarsh Iron Works, Incorporated,” employed the driver of the truck, and that the name of “David M. Oltarsh Iron Works, Incorporated,” was painted on the truck, and that at the place of business where the plaintiff called before bringing this suit was a large sign “David Oltarsh Iron Works, Incorporated.” The fact that a corporation by that name existed appeared by uncontradicted oral testimony without objection. The claimed admission of defendant that he owned the truck and employed the driver is a forced construction of language, which could not have misled plaintiff, when by inquiry he might have readily ascertained that Mr. Oltarsh was referring to his company.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.