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NEUMEIER v. KUEHNER

37 A.D.2d 70 (1971)

Joan Neumeier, as Administratrix of The Estate of Amie Neumeier, Deceased, Appellant, v. Irene Kuehner, as Administratrix of The Estate of Arthur Kuehner, Deceased, et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

July 1, 1971.

Attorney(s) appearing for the Case

Ohlin, Damon, Morey, Sawyer & Moot (James Schmitt and James S. McAskill of counsel), for appellant.

Smith, Murphy & Schoepperle (Frank G. Godson of counsel), for Irene Kuehner, respondent.

Moot, Sprague, Marcy, Landy & Fernback (Courtland R. LaVallee of counsel), for Canadian National Railway, respondent.

DEL VECCHIO, J. P., and GABRIELLI, J., concur with CARDAMONE, J.; MOULE, J., dissents and votes to affirm in an opinion, in which HENRY, J., concurs.

CARDAMONE, J.

The question presented by this appeal is whether, in a wrongful death action brought by a Canadian domiciliary, the Ontario guest statute may be interposed as an affirmative defense by the defendant driver, a New York domiciliary whose automobile is owned, registered, and insured in New York State. A reading of the majority view in Tooker v. Lopez (24 N.Y.2d 569

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