May 24, 1939.
Appeal from Broome County Court.
On April 30, 1938, while defendant Anthony Kovach was operating the car owned by defendant Paul Kovach, Jr., in the village of Endicott, N.Y., a collision occurred between that car and an automobile owned by plaintiff with the result that plaintiff's car was damaged. Plaintiff's action was against both defendants to recover for the damages so sustained. The sole question on this appeal is whether or not the evidence establishes that defendant, Anthony Kovach, was operating the car owned by appellant, Paul Kovach, Jr., at the time and place when the accident occurred with the permission or consent of such owner. The defendants are brothers and resided in the same home with their father, mother and a sister. The car was kept in a garage in the rear of the residence. There were two sets of keys for the car, one of which appellant retained possession, and the other set was in the possession of appellant's father so that appellant's parents might use the car when appellant was otherwise engaged. Appellant and his brother, the codefendant, were the only members of the family who had licenses to operate a motor car. The evidence presents a question of fact as to whether or not Anthony Kovach was operating the car at the time and place in question with the permission and consent of the owner. Judgment and order unanimously affirmed, with costs.