Friedling v. Railway Express Agency, Inc.

Full title: HARRIET FRIEDLING, an Infant, by SAMUEL FRIEDLING, Her Guardian ad Litem…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 4, 1942

264 App. Div. 772 (N.Y. App. Div. 1942)

Opinion

May 4, 1942.

From a judgment in favor of the plaintiffs in an action to recover damages for injuries suffered by the infant plaintiff and to recover for medical expenses and loss of services by her father, and from an order denying appellant's motion to set aside the verdict, defendant Railway Express Agency, Inc., appeals. Judgment and order affirmed, with costs. No opinion.

Carswell, Taylor and Close, JJ., concur;

Lazansky, P.J., and Adel, J., dissent and vote to reverse the judgment, to dismiss the appeal from the order denying appellant's motion to set aside the verdict, and to dismiss the complaint, with the following memorandum:

The employee at the time of the accident was returning from lunch. The carrying of the battery was incidental thereto. There is nothing to show that the battery was required for immediate use or that the employee could not have waited until the arrival of a truck which he could have used to go for the battery. He was using his car for his own convenience. No authority, express or implied, is shown.