June 29, 1945.
This action is for personal injuries and property damage sustained by plaintiff by reason of an automobile collision between his car and a car owned by defendant. The defendant admitted ownership. The plaintiff proved his damages and rested on the presumption of ownership. The defendant proved that his car was stolen by the person who was driving it at the time of the accident and that no permission had been given to operate it. There was no evidence to contradict the lack of permission. Evidence to rebut the presumption was substantial. It was not improbable or inconsistent. It was not discredited. It was corroborated by independent testimony. The claim of the plaintiff that the defendant, by leaving his keys in the car, started a chain of events which led to and caused the accident as a proximate cause, was not warranted. At the close of the testimony the complaint was dismissed and judgment of dismissal was entered. Judgment affirmed, without costs. Hill, P.J., Heffernan, Foster and Lawrence, JJ., concur; Brewster, J., dissents.