Opinion
July 11, 1951.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Piper, JJ. [ 198 Misc. 791.]
Judgment reversed on the law and facts, with costs, and judgment directed in favor of the claimant for the sum of $335.72, with interest. Certain findings of fact disapproved and reversed and new findings made. Memorandum: The claim of the appellant, Milford E. Nichols, was for medical expenses and services of his wife, Alice Nichols, and also for the damage to his automobile. We have held that appellant's wife may not recover by reason of her contributory negligence so that the claimant husband cannot recover for the medical expense and services. However, the State has been found to be negligent. Since the claimant husband was an absentee owner and the wife was not upon any business of his at the time of the accident, the contributory negligence of the wife is not imputable to the claimant so as to prevent him from a recovery for the stipulated amount of damage to his car. He is entitled to a judgment in the amount of $335.72. The dismissal of his claim should be reversed and judgment ordered for that amount. All concur. (Appeal from a judgment dismissing a claim for damages alleged to have been sustained by reason of negligent condition of State highway.)