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BARRETT v. McNULTY

27 N.Y.2d 928 (1970)

Clarice A. Barrett, Individually and as Administratrix of The Estate of Richard Barrett, Deceased, Appellant-Respondent, v. Thomas McNulty, Respondent-Appellant, and Hertz Corporation et al., Respondents. John Toner, Respondent, v. Thomas McNulty, Respondent-Appellant, and Hertz Corporation et al., Respondents.

Court of Appeals of the State of New York.

Decided December 9, 1970.

Attorney(s) appearing for the Case

Leonard Feldman for appellant-respondent.

John P. Walsh and Warren A. Herland for respondent-appellant and for Motor Vehicle Accident Indemnification Corporation.

Benjamin Heller for respondents.

Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.

MEMORANDUM.

There was uncontradicted evidence that the defendant driver did not have express permission to operate the motor vehicle involved in the accident; and there was no competent evidence from which permission or authority could be inferred. Thus, the presumption of permissive use was overcome and the complaint as against the owner and the lessee was properly dismissed at the close of all the evidence. Evidentiary...

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