Conigliaro v. Mills 261 A.D. 839

Action to recover for personal injuries sustained by plaintiff, who was in collision with an automobile owned and operated by the defendant Mills, an employee of the appellant. Order of the Appellate Term, affirming a judgment of the City Court, Kings County, in favor of plaintiff, and the judgment of the City Court, reversed on the law and the complaint dismissed, with costs to appellant in all courts. A verdict should have been directed in appellant’s favor. The use of the automobile was in furtherance of appellant’s business, but without its consent, and at a time when appellant had provided adequate means of transportation for the employee’s use, and there was no reason for the failure of the employee to avail himself of those facilities. In these particulars, the case of Johnson v. Great Atlantic & Pacific Tea Co. (245 App. Div. 764) is distinguishable. Lazansky, P. J., CarsweE, Johnston, Adel and Close, JJ., concur.