Green v. Spinard , 284 A.D. 905 ( 1954 )

In an action to recover damages for injuries to person and property, claimed to have been caused by appellant’s negligence in permitting his cows to enter upon and roam on a public highway, defendant Bernard Spinard appeals from a judgment in favor of plaintiff. Judgment affirmed, with costs. No opinion. Wenzel, MacCrate and Schmidt, JJ., concur. Adel, Acting P. J., and Beldoek, J., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: On the proof in this record it is clear that the presence of the cows on the highway was not unlawful and was not a concurring cause of the accident. Under all the circumstances the conclusion is inescapable, as a matter of law, that plaintiff did not have his car under control.