Malkowski v. Diasparra , 271 A.D.2d 827 ( 1946 )

In this negligence action the infant plaintiff was awarded damages for personal injuries sustained by him through the claimed negligence of defendants in the operation of a truck in which he was riding, and his father received a verdict for expenses and loss of services. The causes of action were founded on two theories, first, that the infant plaintiff was on the truck as an employee of defendant Cataldo Diasparra, and second, that he was an invitee on the truck at the time of the accident. The actions were severed and, upon a former appeal,- a judgment in favor of plaintiffs was reversed and a new trial granted on the theory that there was evidence in the defense justifying the submission to the jury of the question of defendants’ liability on the theory that the infant plaintiff was a passenger on the truck after termination of the master and servant relationship. (Malkowski v. Diasparra, 270 App. Div. 768.) On the retrial, no evidence was adduced supporting the theory upon which the case was tried. To the contrary, plaintiffs’ proof is conclusive that the infant plaintiff was injured while in the employ of defendant Cataldo Diasparra. Defendants rested upon plaintiffs’ proof and moved to dismiss. The motion was denied and an exception duly taken. Judgment reversed on the law, with costs, and the complaint dismissed on the law, with costs. The facts are affirmed. In our opinion, plaintiffs’ proof established conclusively the relationship of master and servant between the infant plaintiff and defendant Cataldo Diasparra at the time of the accident. Hagarty, Acting P. J., Carswell, Johnston, Adel and Aldrich, JJ.,