Fisher v. New York Good Humor, Inc.

Assuming that a presumption existed in favor of plaintiff that the act of the employee in permitting intestate to ride as a passenger was within the scope of the employment, the uneontradieted proof of the defendant that the employee had been forbidden to carry passengers, supplemented by the written instructions and the paster on the windshield of the truck, operated conclusively to rebut such presumption and required dismissal of the complaint. (Rolfe V. Hewitt, 227 N. Y. 486; Goldberg v. Borden’s Condensed Milk Co., 227 N. Y. 465; Psota v. Long Island R. R. Co., 246 N. Y. 388; Clark v. Harnischfeger Sales Corp., 238 App. Div. 493; Hull v. Littauer, 162 N. Y. 569, 572.) Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.