200 A.D. 855 | N.Y. App. Div. | 1922
The action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff by reason of his being knocked down by an automobile owned or controlled by the defendants. The testimony undisputedly established that the automobile which struck plaintiff was owned by the defendant Milly Frank Mayer, the wife of the eodefendant Joseph G. Mayer. The car, however, was operated by a chauffeur who was employed by defendant Joseph G. Mayer, and whose duty it was to drive the car for any member of his family. At the time of the accident Mrs. Mayer was in the car on the way to Altman’s, Thirty-fourth street and Fifth avenue. The complaint was properly dismissed as against her. (Potts v. Pardee, 220 N. Y. 431.) The main legal question urged by appellant arises from the differences in the testimony of plaintiff’s and defendants’ witnesses with respect to the place where the accident occurred. The accident happened at or near the crossing on Fifth avenue and Fifty-third street.