Opinion
Argued January 6, 1965
Decided February 11, 1965
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JACOB J. SCHWARTZWALD, J.
Sheridan Albert for appellant.
Norman Dachs for respondent.
Order affirmed, without costs, in a memorandum: Appellant neither alleged in his complaint nor sought to prove at the trial that the automobile in which the deceased infant was riding was, at the time of the accident, being operated by the driver (Eleanor Jill) in connection with or in furtherance of the business or interests of the vehicle's owner (Jill Bros., Inc.). Such use, as the Appellate Division correctly observed, is a necessary predicate to the imposition of liability upon the owner under the law of New Jersey, the law clearly applicable to the issue of respondent owner's vicarious liability. It follows, therefore, that respondent's motion to dismiss the complaint should have been granted. The course of the trial and the frame of the complaint suggest a misapprehension by the court and counsel of the applicable rule of liability, and hence the affirmance is without prejudice to such motion to amend the complaint as plaintiff may be advised to make.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN.