
    John McEnroe, Respondent, v. Moses Taylor, Appellant.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Master and servant — Liability for injuries to third persons — Actions — Weight and sufficiency of evidence; Instructions.
    In an action to recover for personal injuries resulting from plaintiff’s being struck by defendant’s automobile, where defendant testifies that his chauffeur, who was running the machine, was acting at the- time without authority and against his express command, it is error to charge the jury that they may consider as proof of the chauffeur’s authority the fact that defendant did not deny such authority at the time he was served’ with the summons.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, seventh district, borough of Manhattan, rendered in favor of the plaintiff.
    Frank V. Johnson (Allen E. Brosmith, of counsel), for appellant.
    John C. Coleman, for- respondent.
   Per Curiam.

It is undisputed that plaintiff was struck by defendant’s automobile while being run or operated by defendant’s chauffeur. The defendant testifies that the chauffeur was acting without his authority and against his express command. The chauffeur was not produced at the trial? his absence, however, being explained. There is evidence that the defendant failed to deny the authority of the chauffeur when served with the summons and complaint.

The court charged the jury that the failure of the defendant at the time he was served with the summons and complaint to deny that the chauffeur was acting at the time of the accident as the employee of the defendant and in the performance of duties for the defendant, may be considered as proof that the agent had authority,” to which exception was taken.

In so charging the jury, the court committed error prejudicial to the defendant.

Present: Gildebsleeve, Guy and Bbuge, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  