Appellate Division of the Supreme Court of New York, 1947

Malachowski v. Edward Smith Packing Co.

Malachowski v. Edward Smith Packing Co.
Appellate Division of the Supreme Court of New York · Decided November 12, 1947
272 A.D.2d 1099
Malachowski v. Edward Smith Packing Co.

Opinion of the Court

Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event, on the ground that the question of whether plaintiff and the driver of the car in which he was riding were fellow servants engaged in the same employ and in the course of such employment at the time of the accident was a question of fact which should have been submitted to the jury, and refusal to do so was reversible error. All concur, except Harris and Larkin, JJ., who dissent and vote for affirmance. (The judgment is for plaintiff against defendant Packing Company in an automobile negligence action. The order denies a motion for a new trial.) Present — Dowling, Harris, McCurn, Larkin and Love, JJ.

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