Sagorsky v. Malyon , 283 A.D. 859 ( 1954 )

— Judgment reversed, with costs to the appellant; and judgment is directed to be entered in favor of the appellant dismissing the complaint herein, with costs. The verdict is against the weight of the evidence. The evidence leads inevitably to the conclusion that at the time of the theft there was not “ actually in or upon ” the vehicle in question “ a person whose sole duty it was to attend the vehicle ”. Present — Peck, P. J., Dore, Cohn, Bastow and Botein, JJ.; Cohn and Botein, J J., dissent and vote to affirm.