Freiman v. Long Island Lighting Co.
156 N.Y.S.2d 1013
N.Y. App. Div.
1956
Check Treatment

Action by the individual appellant, the president and sole stockholder of the corporate appellant, to recover damages for personal injuries and by the corporate plaintiff to recover damages for injury to its automobile. The appeal is by permission of this court from an order of the Appellate Term reversing a judgment of the City Court of the City of New York, County of Queens, in favor of appellants, and dismissing the complaint. The order of the Appellate Term was made on the grounds that the individual appellant was guilty of contributory negligence and that the rule in Mills v. Gabriel (259 App. Div. 60, affd. 284 N. Y. 755) was not applicable to the cause of action of the corporate appellant. Order affirmed, with costs. No opinion. Wenzel, Acting P. J., Murphy and Hallinan, JJ., concur; Beldoek and Kleinfeld, JJ., dissent and vote to reverse the order and to reinstate the judgment of the City Court, with the following memorandum: In our opinion, it may not be said that the individual appellant was guilty of contributory negligence as a matter of law because, in awarding judgment for appellants, the trial court was free to find that (1) the individual appellant stopped before entering the intersection, looked, and proceeded slowly into the intersection; (2) he had the right of way, and (3) he was almost across the intersection when the accident happened and, if respondents’ truck had been on the right side of the street, the accident would not have happened. [See post, p. 985.]