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Appellate Term, First Department, March, 1918. [Vol. 102.

being operated by a friend to whom it had been loaned, the evidence is sufficient to sustain a finding in plaintiff's favor that the injury was caused by the negligence of the operator and that plaintiff was free from contributory negligence, but it is undisputed that at the time of the accident the automobile was not being used for the benefit of the defendant or under his direction, the negligence of the driver cannot be imputed to the defendant.

APPEAL by defendant from a judgment of the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of plaintiff.

David C. Broderick, for appellant.

Arthur G. Basch, for respondent.

PHILBIN, J. The plaintiff's horse and wagon were Injured by reason of a collision with defendant's automobile while the latter was being operated by a friend of defendant to whom he had loaned it. There is sufficient evidence to sustain the finding in favor of plaintiff to the effect that the injury was caused by the negligence of the operator of the automobile and that plaintiff was free from contributory negligence.

The next consideration is whether the defendant can be held liable for the negligence of the driver. The undisputed testimony is that the automobile was loaned to the woman who was driving and that it was not being used at the time of the accident for the benefit of the defendant or under his direction. While ownership of an automobile is prima facie evidence of the owner's responsibility for an accident caused by the driver's negligence, this presumption disappears in the face of substantial or undisputed testimony that such driver was not in the owner's employ at that time. Potts v. Pardee, 220 N. Y. 431. We see, therefore, that the negligence of the driver cannot in this case be imputed to the defendant.

Misc.] Appellate Term, First Department, March, 1918.

It appears from what was said by the court at the close of the trial that judgment was rendered against the defendant on the ground that he was personally guilty of negligence in intrusting the operation of his automobile to a person ignorant of and generally unskilled in its management and that such negligence was the proximate cause of the injury. We think the court was in error in so finding. The operator had taken lessons in driving, under the instruction of the defendant, and it does not appear that she was ignorant or generally unskilled. It is true that she did not have an operator's license, but it does not appear that any was necessary under the circumstances. The present statute (in effect at the time of the accident, September 26, 1917) provides that no person shall operate or drive a motor vehicle in a county wholly included within a city for more than ten days in any calendar year unless such person is a duly licensed chauffeur or operator whether the owner of such vehicle or otherwise. Highway Law, § 282, as amd. to take effect July 1, 1917. The record fails to bring the driver within the provisions of the law mentioned.

The case of Schultz v. Morrison, 91 Misc. Rep. 248; affd., 172 App. Div. 940, is to be distinguished. There the operator was a boy under the age of eighteen years and expressly prohibited by law from operating an automobile. Highway Law, § 282, subd. 2. Here there is no evidence as to the woman's age.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

GUY and DELEHANTY, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Appellate Term, First Department, March, 1918. [Vol. 102.

CLARENCE NAUGHTON, Respondent, v. CHARLES E. MCWILLIAMS, MAY MCWILLIAMS et al., Appellants.

(Supreme Court, Appellate Term, First Department, March, 1918.)

Negligence

of master of vessel

wages damages.

It is well-settled maritime law that a master cannot claim wages if his vessel is lost through his negligence.

Where plaintiff's duty as master and sole hand of one of defendant's coal barges, except when absolutely necessary for him to go ashore for provisions and supplies, required his constant presence on the barge, and he was away during a storm which resulted in the barge being cast upon the rocks and destroyed, his negligence not only is a bar to recovery for wages but subjects him to an action for damages for loss of the vessel.

APPEAL from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district.

Silas B. Axtell, for appellants.

Laurence J. Bershad, for respondent.

DELEHANTY, J. Under any aspect of the case I fail to see how plaintiff is entitled to sustain his recovery herein. On the 6th of September, 1917, he was employed by defendants as the captain and sole hand of one of its coal barges on a monthly hiring of seventy dollars. On October 23, 1917, plaintiff anchored his barge in Newport harbor and during that day abandoned the same leaving no one in charge thereof. On the morning of October twenty-fourth following, while plaintiff was still away from his boat, a storm broke loose which resulted in the barge being cast upon the

Appellate Term, First Department, March, 1918.

Misc.] rocks at that point and completely destroyed with a consequent loss to defendants of three thousand dollars, the reasonable value thereof. At that time there was due plaintiff on account of wages forty-one dollars and eighty-four cents, for which this action was instituted. Defendants pleaded a denial and counterclaimed for the value of the boat.

It is conceded that the plaintiff's duty required his constant presence on his ship, except when absolutely necessary for him to go ashore for provisions and supplies. In the light of this situation it was incumbent on plaintiff to bring himself within the exception stated in order to recover. This he failed to do or offer any excuse whatsoever for his absence on the occasion in question. It is well-settled maritime law that a master cannot claim wages if his vessel is lost through his negligence or neglect. Latham v. West, 5 Mart. (La.) 573; Hennen v. Munroe, 11 id. 579; Lombard S. S. Co. v. Anderson, 134 Fed. Repr. 568, 570; 44 Am. Cent. Digest, p. 309, § 297. Leaving his boat under the circumstances detailed and to the prey of arising storms was grossly negligent on the part of plaintiff from which he is not relieved by the fact that the storm, a concurring event, co-operated in the destruction thereof. Brehm v. Great Western R. Co., 34 Barb. 256; Pollett v. Long, 56 N. Y. 200. Such negligence not only bars plaintiff's recovery herein but subjects him to damages for the loss of his ship.

It follows, therefore, that the judgment appealed from should be reversed, with thirty dollars costs, and the complaint dismissed and judgment granted defendants on their counterclaim, with costs.

GUY and PHILBIN, JJ., concur.

Judgment reversed, with costs.

Appellate Term, First Department, March, 1918. [Vol. 102.

IRONBOUND TRUST COMPANY, Appellant, v. SCHMIDTDAUBER COMPANY, INC., Respondent.

(Supreme Court, Appellate Term, First Department, March, 1918.)

Negotiable instruments - bona fide holder in due course — bills, notes and checks-banks-verdict.

In an action against the maker upon four promissory notes protested for nonpayment, the answer alleged that plaintiff, when the notes were discounted, was not a bona fide holder in due course in that at the time the notes were negotiated to it plaintiff had notice of the infirmities thereof, of the defect in the title of the person negotiating them and knowledge that the notes were obtained by false representations as to the financial condition of the payee and were without consideration. Upon the trial it appeared that said notes were given by defendant to the corporation payee, with which it had been dealing for about five years, as an advance payment for merchandise, upon the assurance of the president of the payee that it was "A No. 1," at the same time giving to defendant a note of the corporation indorsed by its president individually. About two months after the notes in suit were given, the payee, whose account with plaintiff was overdrawn the day after said notes were discounted, was adjudicated a bankrupt and the merchandise was never delivered. It further appeared that the payee of the notes for several years had been a depositor with plaintiff which had discounted defendant's notes before and they had been paid and that plaintiff made inquiries as to defendant's responsibility at the bank in which he was a depositor. Held, that plaintiff had a right to rely on the financial responsibility of the maker, and there being nothing to indicate that the notes which were presented for discount by a representative of the payee who had been in the habit of bringing commercial paper to plaintiff for discount were other than the usual commercial paper, and there being no evidence either that plaintiff had actual knowledge of any infirmity or defect in the notes or that would justify a finding of bad faith, plaintiff's motion for the direction of a verdict in its favor at the close of the entire case should have been granted. The deposit of the proceeds of the discounted notes to the

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