280 A.D. 1020 | N.Y. App. Div. | 1952
Appeal from two orders of the Supreme Court, Special Term for Albany County which denied defendant’s motion, made under subdivision 9 of rule 107 [now rule 107, subd. 8], of the Rules of Civil Practice, to dismiss the complaint herein. The second order appealed from is a resettlement of the first and takes the place thereof. The complaint is laid in negligence arising out of an automobile accident. Defendant is a son of the decedent and was driving the automobile in which she was a passenger at the time of the accident in which she received the injuries which later caused her death. He was then sixteen years of age. Plaintiff claims that defendant was emancipated prior to the accident, and some proof of emancipation was presented by way of affidavits. The Special Term held that the issue should be determined by a jury as an issue of fact. Order affirmed, with $10 costs. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.