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Elliott v. Flushing Sand and Stone Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
Dec 15, 1947
273 App. Div. 782 (N.Y. App. Div. 1947)

Opinion

December 15, 1947.


In an action to recover damages for wrongful death, the impleaded defendant and the plaintiff appeal from an order granting reargument and on reargument denying the motion of the impleaded defendant to vacate an order granting the impleader. Order affirmed, with $10 costs and disbursements. The original defendant was the owner of the truck involved in the accident. That defendant rented the truck and furnished the chauffeur to the impleaded defendant. Whether the chauffeur was at the time of the accident the servant of the original defendant or of the impleaded defendant is a question of fact. The circumstance that the chauffeur was being paid by the original defendant does not prevent a finding that he was at the time of the accident the servant of the impleaded defendant. ( Wyllie v. Palmer, 137 N.Y. 248; Higgins v. Western Union Telegraph Co., 156 N.Y. 75; Osborg v. Hoffman, 252 App. Div. 587, affd. 280 N.Y. 523. ) The original defendant may be held liable whether the chauffeur was or was not its servant at the time of the accident. ( Irwin v. Klein, 271 N.Y. 477.) If the original defendant is held liable solely as the owner of the truck, that is, under section 59 Veh. Traf. of the Vehicle and Traffic Law, it is entitled to indemnity from the impleaded defendant if it be found that the chauffeur was the servant of the impleaded defendant at the time of the accident. Hagarty, Acting P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.


Summaries of

Elliott v. Flushing Sand and Stone Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
Dec 15, 1947
273 App. Div. 782 (N.Y. App. Div. 1947)
Case details for

Elliott v. Flushing Sand and Stone Co., Inc.

Case Details

Full title:WILLIAM V. ELLIOTT, Public Administrator of Kings County, as Administrator…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 15, 1947

Citations

273 App. Div. 782 (N.Y. App. Div. 1947)

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