Opinion
July 2, 1956
In an action to recover damages for personal injuries, the appeal is from a judgment entered on the verdict of a jury in favor of respondent. The sole question presented on this appeal is whether the motor vehicle owned by appellant was being operated at the time of the accident with its consent, express or implied (Vehicle and Traffic Law, § 59). Judgment reversed on the law, with costs, and complaint as against appellant dismissed. It is not seriously contended that the driver was ever given express permission to use the motor vehicle, and the overwhelming evidence is to the effect that he had never used it or moved it outside the garage and that it had never before been used by any employee except in a manner connected in some way with appellant's business. At the time this accident occurred, it was concededly being used in connection with the purely personal affairs of the operator. On the whole case, it must be held that it was being operated without appellant's consent. Wenzel, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.