Opinion
December 30, 1942.
Present — Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ.
Action to recover damages for wrongful death of plaintiff's intestate as a result of the alleged negligent operation of defendant's truck by its employee at a time when plaintiff's intestate was riding upon it. Order denying motion to set aside a direction dismissing the complaint at the close of the entire case and for a new trial unanimously affirmed, with costs. Assuming that a presumption existed in favor of plaintiff that the act of the employee in permitting intestate to ride as a passenger was within the scope of the employment, the uncontradicted proof of the defendant that the employee had been forbidden to carry passengers, supplemented by the written instructions and the paster on the windshield of the truck, operated conclusively to rebut such presumption and required dismissal of the complaint. ( Rolfe v. Hewitt, 227 N.Y. 486; Goldberg v. Borden's Condensed Milk Co., 227 N.Y. 465; Psota v. Long Island R.R. Co., 246 N.Y. 388; Clark v. Harnischfeger Sales Corp., 238 App. Div. 493; Hull v. Littauer, 162 N.Y. 569, 572.)