James Butler, Inc. v. Jackson , 214 N.Y.S. 23 ( 1926 )

Per Curiam.

The record herein presents erroneous rulings highly prejudicial to the defendant.

The action is to recover damages for the cost of repairs to plaintiff’s autotruck due, as alleged, to defendant’s automobile colliding therewith. The main defense interposed to the action was that the automobile in question was not under the control or operation of the defendant or any of his agents or servants at the time of the accident. Defendant repeatedly sought to show, in vain, however, that the automobile was rented by defendant to one Hendrickson, who was driving it at the time of the accident, and that it was not being used at said time for the benefit of defendant or under his direction; but the court ruled out all testimony of this character on the ground of irrelevancy.

This is not a case which, as intimated by the trial justice, comes within the provision of section 282-e of the Highway Law (added by Laws, of 1924, chap. 534, as amd. by Laws of 1925, chap. 167), which took effect July 1,1924, making the negligence of an operator of a motor vehicle, other than the owner, attributable to the owner when the car is legally used or operated with the permission, express or implied, of the owner. The amendment is not retroactive and has no application to the accident in question, which occurred on September 24, 1923. We conclude, therefore, that the judgment should be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, Delehantt and Wagner, JJ.