Opinion
April 30, 1941.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Schenck, JJ.
Appeals to this court have been taken by the defendant Belotte from verdicts rendered in the two above-entitled actions in favor of the plaintiffs. In the death action, the verdict was $2,500; in the injury action the verdict was $4,000. The actions were based on the provisions of section 59 Veh. Traf. of the Vehicle and Traffic Law. The question of fact, for jury determination, was whether or not the motor vehicle of the defendant Belotte was being used at the time of the accident, with the permission, express or implied, of such owner. The presumption under section 59 Veh. Traf. of the Vehicle and Traffic Law made out a prima facie case for the plaintiff in the first instance. In addition there was much other evidence tending to show that the vehicle in question at the time of the accident was being used with the acquiescence and consent of the owner and that he had given his permission to the driver of the vehicle to use it in the driver's own business, which he was doing at the time of the accident. There was also evidence contradicting his right to use the vehicle. Much of the evidence was given by interested witnesses and the question of their credibility was a question which was properly submitted to the jury and the jury has resolved it against the defendant. The judgments are not against the weight of evidence and the verdicts are not excessive. Judgments and orders appealed from are unanimously affirmed, with costs. ( Piwowarski v. Cornwell, 273 N.Y. 226; Hartstein v. United States Trucking Corp., 260 App. Div. 643.)