Garvey v. A. O. Feidelson, Inc.

In an action to recover damages for injuries alleged to have been sustained when the infant plaintiff was struck by an automobile owned and operated by defendant Ayer, an employee of the appellant A. 0. Feidelson, Inc., judgment as against A. 0. Feidelson, Inc., reversed on the law and facts, with costs, and' the complaint dismissed on the law, with costs. In our opinion the proof established that at the time the accident happened defendant Ayer was not acting within the scope of his employment, but was engaged in an independent mission of his own. (Reilly v. Connable, 214 N. Y. 586; Benevento v. Poertner Motor Car Co., 235 N. Y. 125; O’Brien v. Stern Brothers, 223 N. Y. 290; Rosenberg v. Syracuse Newspapers, Inc., 248 App. Div. 294, 296, and cases there cited; Marconi v. Becci, 223 App. Div. 858.) In any event, a new trial would be granted because, in our opinion, the verdict is against the weight of the evidence. Carswell, Acting P. J., Johnston, Adel, Sneed and Wenzel, JJ., concur.