Fink v. Brzezinski , 37 N.Y.S.2d 347 ( 1942 )

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide .the event. Memorandum: With the consent of the plaintiffs, the cases were submitted to the jury on the sole question as to whether Hollenbeck was operating the car with the express permission of the defendant or of his father. The plaintiffs consented that the question of implied consent be -withdrawn from the jury. This procedure necessarily eliminated the question as to the presumption created by section 59 of the Vehicle and Traffic Law. The court charged that there was “ no positive testimony of expressed consent,” thus leaving the jury to find express consent by inference to be drawn from the testimony. The finding of the jury that there was express consent was, in our judgment, against the weight of the evidence. The motion to set aside the verdicts and for new trials should have been granted. All concur. (The judgment is for plaintiffs in three automobile negligence actions. The order denies a motion for a new trial in all actions.) (Present — Crosby, P. J., Cunningham, Taylor, Dowling and MeCurn, JJ.