Opinion
December 30, 1940.
Appeal from County Court of Suffolk County.
In each of the two actions brought on behalf of Joseph Brandi and Joseph Buckin, Jr., for personal injuries, judgment reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. In each of said actions the appeal from the order denying defendant's motion to set aside the verdict and for a new trial is dismissed, without costs. Brandi, who operated an automobile which collided with a train of defendant, and Buckin, Jr., who was a passenger in the automobile, were both guilty of contributory negligence as matter of law. ( Crough v. New York Central R.R. Co., 260 N.Y. 227, 231; Weigand v. United Traction Co., 221 id. 39, 42; Miller v. New York Central R.R. Co., 226 App. Div. 205, 207; affd., 252 N.Y. 546; Nelson v. Nygren, 259 N.Y. 71, 75, 76.) Lazansky, P.J., Johnston, Adel, Taylor and Close, JJ., concur. In the action brought by Joseph Buckin, Sr., owner of the automobile, for property damage, judgment and order affirmed, with costs. A finding that defendant was negligent is supported by the evidence ( Elias v. Lehigh Valley R.R. Co., 226 N.Y. 154, 158); and since the automobile was being operated with the owner's permission, but in his absence and not upon his business, the negligence of the operator may not be imputed to the owner. ( Mills v. Gabriel, 259 App. Div. 60; Nannes v. Ideal Garage, Inc., 150 Misc. 522.) Lazansky, P.J., Johnston, Taylor and Close, JJ., concur; Adel, J., dissents and votes to reverse the judgment and order and to grant a new trial on the ground that the verdict of the jury is contrary to the weight of the credible evidence.