Opinion
Argued October 17, 1928
Decided October 26, 1928
Appeal from the Supreme Court, Appellate Division, Second Department.
Theodore H. Lord, Fred H. Rees and Daniel Mungall for appellant.
Leonard F. Fish and William Seligson for respondent.
The record before us contains no sufficient evidence from which the jury might find that at the time of the accident the automobile of the defendant was operated by his son as his agent. There is even no proof that this was a family car. Had such proof been present it might be necessary to determine the question of liability under Missell v. Hayes ( 86 N.J.L. 348), assuming that that case states the common law of New York as we interpret it. The accident happening in New Jersey, section 282-e of our Highway Law has no application.
The judgment of the Trial Term and of the Appellate Division should be reversed, and a new trial ordered, with costs to abide the event.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Judgment reversed, etc.