Elwood J. Harlam, for appellant.
Charles S. Rosenthal, for respondent.
The plaintiff did not oppose the motion, nevertheless, the learned judge below denied it on the ground that the pleadings raised a good issue. The complaint alleges that the plaintiff was injured by the careless operation of an automobile owned by the defendant, and that the same at the time of the accident was operated by a chauffeur who is named.
Respondent's citation of McCann v. Davison, 145 A.D. 522, is not in point. That case holds merely that proof of ownership gives rise to a presumption of control. The case at bar is concerned with pleadings. It is not denied that defendant is sought to be held liable not because of his ownership of the automobile, but because at the time of the accident he was in operation or control thereof either in person or by his servant. This, however, is not alleged. On the contrary, plaintiff seems to have studiously avoided the allegation that the chauffeur in operation thereof at the time of the accident was the servant of the defendant.
In view of the pleader's failure to insert the necessary allegation, and, indeed, of the plain intimation that he purposely avoided the making thereof, the complaint fails to state a good cause of action.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and complaint dismissed.
SEABURY and COHALAN, JJ., concur.
Order reversed, with ten dollars costs and disbursements.