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November 26, 1957

Helen JACOBS, Plaintiff,
Frank MUNEZ and Irving Warren, Defendants

The opinion of the court was delivered by: SUGARMAN

On March 18, 1956, Rene Jacobs borrowed an automobile from Irving Warren for the purpose of attending a reception at the Plaza Hotel in New York City.

Rene Jacobs, accompanied by his wife, Helen Jacobs, proceeded in Warren's car from their residence in Westport, Connecticut, to New York. It had been snowing previously and again during their drive from Connecticut to New York. When they had partly descended the 57th Street Ramp connecting the West Side Highway and Twelfth Avenue, New York City, the Warren car was involved in a collision with one owned and operated by Frank Munez. Mrs. Jacobs was injured.

On August 16, 1956 Mrs. Jacobs commenced suit in this court against Irving Warren and Frank Munez. The cause came to trial. Rene Jacobs was the first witness. He testified in substance that when he approached the top of the 57th Street ramp, proceeding southerly, because of the snow and slush he slowed the Warren car to approximately ten miles an hour and when he reached a point half way down the ramp he was proceeding well on the right side of his lane at approximately five to eight miles an hour. That at that time the Munez car proceeded up the northbound lane of the ramp and skidded over into the southbound lane and there struck the Warren car.

 The plaintiff, Helen Jacobs, was the next witness. On direct examination, cross examination and in answer to questions addressed to her by the court, she in substance reiterated her husband's testimony as to the manner in which he operated the Warren car immediately before and at the time of the accident. Her testimony was positive and unequivocal. The plaintiff, Helen Jacobs, then sought to call the defendant, Frank Munez, as her witness. Counsel for the defendant Warren objected upon the ground that, as had appeared from an earlier deposition of the defendant Munez, he would testify that he had never left the northbound land and that the Warren car operated by Mr. Jacobs had come over into his lane and struck his car. When the court interrogated plaintiff's counsel as to the proof which he hoped to elicit from the defendant Munez, plaintiff's counsel in the absence of the jury made an offer of proof substantially in accord with that Munez had testified at his pretrial deposition. The court sustained the objection of Warren's counsel upon the following grounds:

 'The determination of defendant Warren's objection to plaintiff proving that Warren was negligent, through the testimony of defendant Munez, can best be determined by considering Thies v. Reich Bros. Long Island Motor Freight, Inc., et al. (273 N.Y. 552, 7 N.E.2d 688), a New York decision.

 'Early on the morning of May 1, 1934 Thies was riding in an automobile driven by Beers westerly on Merrick Road in Nassau County. Near Clocks Boulevard, Beers' car collided head-on with the truck of Reich Bros. Long Island Motor Freight, Inc., driven by Spisak.

 'Thies sued Beers, Reich and Spisak. At the trial, during plaintiff's case, Thies testified that the night was very foggy; that, as he and Beers proceeded, Thies kept looking at the road ahead; that Beers at all times kept on the right-hand side of the road; that just before the accident they were going about fifteen miles an hour; that he suddenly saw lights from the truck right in front of them about eleven feet away.

 'At the close of plaintiff's case Beers rested and moved for a dismissal of Thies' complaint as to him on the ground that Thies had failed to prove Beers' negligence. The motion was denied and after defendants Reich and Spisak put in their proof, the jury brought in a verdict in favor of Reich and Spisak and in favor of Thies against Beers.

 'The Second Department Appellate Division (247 App.Div. 900, 286 N.Y.S. 943) by a three to two decision, on appeal by Beers from the judgment against him and on appeal by Thies from the judgment dismissing his complaint against Reich and Spisak, reversed the former and dismissed Thies' complaint against Beers and affirmed the latter, namely the dismissal of Thies Complaint against Reich and Spisak.

 'As to the dismissal of Thies' complaint against Reich and Spisak it found that the verdict was fully supported by the evidence.

 'As to the reversal of Thies' judgment against Beers it held that Beers' motion at the end of plaintiff's case for a dismissal of his complaint should have been granted because it did not find in plaintiff's case any evidence of negligence on the part of Beers. The dissent was predicated upon the rationale that plaintiff should not be left remediless and that justice required that a new trial be granted.

 'The Court of Appeals (273 N.Y. 552, 7 N.E.2d 688) unanimously affirmed, six judges participating.

 'The present posture of the case at bar is almost identical with the Thies case when the plaintiff there rested.

 'However, in the case at bar plaintiff seeks to elicit from defendant Munez, the driver of the car which collided with that belonging to defendant Warren (which was driven by plaintiff's husband and in which plaintiff was a passenger) proof of plaintiff's husband's negligence in the operation of Warren's car. This, although both plaintiff and her husband have testified that Warren's car, was, at all times before and at the collision, on ...

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