Charles Emery, Respondent, v. William F. McCombs, Appellant, Impleaded with Walter F. Connell, Defendant

Charles Emery, Respondent, v. William F. McCombs, Appellant, Impleaded with Walter F. Connell, Defendant. Second Department, November 16, 1917. Negligence — when owner of motor vehicle not liable for negligence of prospective buyer or agent in driving car for demonstration. The owner of a motor car, who has placed the same in the possession of the keeper of a garage, either as á prospective buyer or as a factor or sales agent, is not liable for the negligence of said garage keeper while driving the car for demonstration, there being no relation of master and servant or any other relation justifying the imputation of the driver’s negligence. Jenks, P. J., and Putnam, J., dissented in part. Appeal by the defendant, William F. McCombs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of January, 1917, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 19th day of January, 1917, denying appellant’s motion for a new trial made upon the minutes. William Butler, for the appellant. W. J. Creamer, for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: The action is for negligence in the driving by defendant Connell of a motor car owned by defendant McCombs. Connell was the keeper of a garage, and McCombs theretofore had put the car in the possession of Connell, either as a prospective buyer of the car, or of a factor or sales agent. At the time of the casualty Connell was driving the car for demonstration. There was no relation of.master and servant or any other relation shown that justified the imputation of Connell’s negligence to McCombs. The defendant Connell did not appeal from the judgment. As to the defendant McCombs, the majority of my associates vote to dismiss the complaint, but Mr. Justice Putnam and I vote for a new trial. The judgment and order should be reversed and-the complaint dismissed, with costs, as to defendant McCombs. Thomas, Mills and Blackmar, JJ., concurred; Putnam, J., concurred for reversal; Jenks, P. J., and Putnam, J., voted for a new trial. Judgment and order reversed and complaint dismissed, with costs, as to the defendant McCombs.