Rintel v. Dairymen's League Cooperative Ass'n

Per Curiam. Plaintiff’s evidence showed that defendant’s truck, exclusively in its possession and control, was left parked by its garage utility man, driverless and unoccupied, on the street in front of defendant’s garage, and that about fifteen minutes later it damaged plaintiff’s property some distance away on the same street, as with its engine running, it was partly upon the sidewalk and partly through plaintiff’s store window. The store was at the northwest corner of Avenue, A and Eighteenth street. Defendant’s garage was on Eighteenth street east of plaintiff’s store. Appellant concedes that plaintiff, by showing the accident and attendant circumstances, made out a prima facie case, but contends the additional proof in plaintiff’s case showed that defendant was not negligent. The additional proof consisted of hearsay statements read from a police officer’s report and testimony given on an examination before trial of defendant by one Pfeifer, defendant’s garage utility man. On defendant’s cross-examination of the officer he was asked to read his report, and neither counsel objected. He was permitted to read same, including a statement that the truck was “ evidently started in motion by some unknown boys, resulting in the truck mounting the sidewalk and demolishing the front ” of the store. The officer stated he did not see a boy on the track and a third person had stated what he had written down. Plaintiff’s previous objection to the statement as hearsay had been overruled. Pfeifer, in his deposition, stated there was no lock on the door of the track; after parking it he went out occasionally and looked at it. He saw no one on the truck or at the wheel. As far as he knew, he was the last one on the track and he had left the ignition key on the floor. It seems clear that the hearsay statements in the police officer’s report and the testimony of Pfeifer did not overcome, as a matter of law, the presumption arising from ownership of the track and the happening of the accident, and that the question of negligence was one of fact for the jury. (Foltis, Inc., v. City of New York, 287 N. Y. 108.) As to the recovery for loss of profits during the period the store was closed as a result of the accident, defendant made no objection on the trial to the estimation of profits during four months as an unreasonable period, nor was any request made to add to the charge of the trial judge in that regard. [318] After the entry of judgment plaintiff moved to add interest from the date of the accident, claiming that under section 480 of the Civil Practice Act plaintiff was entitled to interest from that date, and the court granted the motion. The section relied upon did not authorize such an award. Further, having recovered damages for the loss of the use of the property plaintiff was not entitled to interest from the date of the accident (American Castype Corp. v. Niles-Bement-Pond Co., 177 Misc. 13); and it has been held that as the amendment of the verdict in such case is an incident of the trial, it should not be allowed where, as here, the term had expired. (Urband v. Lubell, 245 N. Y. 156.) Judgment affirmed, with costs. Order reversed and motion denied. McCook and Hammer, JJ., concur; McLaughlin, J., dissents, with opinion.