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• Title: Clarence Barnes v. Shul Private Car Service
• Author : Supreme Court of New York
• Release Date : January 30, 1970
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

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[35 A.D.2d 841 Page 841] Action No. 1 (brought in Kings County) is to recover damages for personal injuries sustained by plaintiff while a passenger
in a private taxicab. Action No. 2 (brought in New York County) is a proceeding by the liability insurer of the vehicle to
stay arbitration sought by said plaintiff under the uninsured motorist endorsement on the liability insurance policy. On July
15, 1970 this court granted a joint motion by both appellants to consolidate the three appeals herein determined. In Action
No. 1 defendant appeals from an order of the Supreme Court, Kings County, dated November 13, 1969, which, after a non-jury
trial on the issues of ownership and control of the vehicle, determined same against defendant. In Action No. 2 petitioner
appeals from two orders of the Supreme Court, New York County, one dated January 26, 1970, denying the application and the
other dated May 6, 1970, denying petitioner's motion to renew the application upon new facts. Orders affirmed, with one bill
of $10 costs and disbursements jointly against appellants. Defendant in Action No. 1 operated a public livery and rented its
vehicles, of which the vehicle in question was one, to drivers for $20 a day, the drivers keeping the excess moneys. This
vehicle looked like a taxi. Plaintiff hailed the "taxi" and the driver stopped, permitted plaintiff to enter and agreed to
drive him to his destination for a fee. At the conclusion of the trip, the taxi struck a fire hydrant, injuring plaintiff.
The act of "picking up a fare" in the street was forbidden by rules and orders. In our opinion, Cohen v. Liberty Mut. Ins.
Co. (35 A.D.2d 719), which involved excess coverage, is distinguishable. In Cohen, the vehicle was leased with the proscription
that it was not to be used or operated by a person under the age of 25 years. The leasing agreement concerned a limited group
-- the owner-lessor, the lessee and the relatively few other qualified persons who might operate the vehicle. The use involved
a private purpose -- presumably the transportation of the lessee and his immediate coterie. At bar, however, the proscription
in the leasing agreement rests upon a different footing. The vehicle was leased to a "gypsy" operator -- not for a private
purpose -- but for the purpose of transporting the general public and for [35 A.D.2d 841 Page 842]

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