Opinion
February 16, 1971
Appeal from an order of the County Court of Albany County, entered July 13, 1970, which affirmed an order and judgment of the City Court of the City of Albany, entered November 21, 1969, setting aside a verdict of no cause of action against the plaintiff and directing judgment in favor of plaintiff. On January 19, 1968 Thomas J. Ferrigan, Jr., borrowed his father's automobile and went bowling. On leaving the bowling alleys, he went to a bakery which he found closed. He then proceeded toward his home and was involved in an accident with a bus owned by defendant. Plaintiff brought an action to recover for the damage to his automobile, and defendant counterclaimed to recover for the damage to its bus. After a trial at which the only witnesses were the bus driver and plaintiff's son, the jury returned a verdict of no cause of action against both parties. Plaintiff moved to set aside the verdict of no cause of action in favor of the defendant on the ground that, since the jury found both drivers negligent in the happening of the accident, plaintiff was entitled to a verdict because the negligence of the operator of plaintiff's automobile could not be imputed to plaintiff. The court granted the motion and directed judgment in favor of plaintiff in the sum of $1,483.52. Defendant now contends that plaintiff failed to sustain his burden of proof in that the only evidence as to the ownership of plaintiff's automobile was the testimony of his son, and he being an interested witness, the jury had the power to pass on the credibility of his testimony and resolve the issues of ownership and purpose of use against plaintiff. The testimony of plaintiff's witness was uncontradicted, and defendant failed to present any evidence of a possible contradictory nature. Under the circumstances, the court was not precluded from determining that the verdict was contrary to the weight of the evidence. All of the uncontradicted evidence indicates that the vehicle was owned by plaintiff and was being exclusively used by his son for his own purposes. The jury, having found that both operators were negligent, the negligence of the operator of plaintiff's automobile was not imputable to plaintiff. ( Continental Auto Lease Corp. v. Campbell, 19 N.Y.2d 350.) Order affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.