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Schillaci v. Fountaine

Supreme Court, Rensselaer County
Oct 22, 1937
164 Misc. 567 (N.Y. Sup. Ct. 1937)

Opinion

October 22, 1937.

Philip J. Cirillo, for the plaintiff.

Clinton, Scott McNamee, for the defendant Hart.

George F. Curley, for the defendant Fountaine.


On the 22d day of April, 1937, plaintiff's intestate and another man were killed by a car owned by the defendant Hart and operated by defendant Fountaine. The testimony indicates culpable negligence. Had any care whatever been exercised by Fountaine, the accident, and the consequent death of these two men, would have been avoided. At the trial a verdict of $17,000 has been returned against Fountaine. He apparently has no employment, no property from which any part of this judgment may be satisfied.

The defendant Hart has succeeded in avoiding any responsibility for the death of plaintiff's husband upon the ground that at the time of the accident Fountaine, who is his brother-in-law and lives with him, had no permission or consent to use the car. The jury having necessarily found this to have been a fact, by its verdict against the driver but not against the owner, it is clear that good ground exists for the prosecution of the defendant Fountaine for the larceny of the car.

A defense of this sort should not succeed without incurring the risk of criminal prosecution of the person using an automobile without consent.

The owner who permits the use of a motor vehicle by another is responsible for the negligence of the operator. (Vehicle and Traffic Law, § 59.) One who uses a motor vehicle without permission is guilty of larceny. (Penal Law, § 1293-a.) Where permission to use the vehicle ends, larceny begins. There is no neutral ground between. Either the owner is responsible for death or injury due to the negligence of the operator, or the operator is guilty of larceny. Permission creates a civil liability of the owner; lack of it creates a criminal liability of the operator.

The record justifies action by prosecuting officials. I direct that a copy of the testimony of the owner and the operator be sent to the district attorney of Albany county, where the accident occurred, for such action as he may deem proper.


Summaries of

Schillaci v. Fountaine

Supreme Court, Rensselaer County
Oct 22, 1937
164 Misc. 567 (N.Y. Sup. Ct. 1937)
Case details for

Schillaci v. Fountaine

Case Details

Full title:FRANCES SCHILLACI, as Administratrix, etc., of VINCENT SCHILLACI…

Court:Supreme Court, Rensselaer County

Date published: Oct 22, 1937

Citations

164 Misc. 567 (N.Y. Sup. Ct. 1937)
299 N.Y.S. 944

Citing Cases

People v. Smith

"Where permission to use the vehicle ends, larceny begins." ( Schillaci v. Fountaine, 164 Misc. 567.) Counsel…

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In dismissing the prosecution, the court construed the statutory phrase "gross deviation" in the light of…