Opinion
October 18, 1956
Appeal from the City Court of the City of New York, Bronx County, LOUIS BENNETT, J.
Bernard Meyerson and Alex A. Bohm for appellant.
Thomas R. Evans, Herbert F. Hastings, Jr., and F.G. Mann for respondent.
The negligence of an automobile driver cannot be imputed to passenger who had joint control of the car in an action between driver and passenger. The rule of imputation of driver's negligence applies only in actions brought by or against third parties. ( Smith v. Clute, 277 N.Y. 407, 414.) However, plaintiff failed to make out a prima facie case.
The judgment should be modified by providing that the dismissal of the complaint is without prejudice, and as so modified affirmed, without costs.
EDER, HECHT and TILZER, JJ., concur.
Judgment accordingly.