
    United States Casualty Company, Respondent, v. Anderson Electric Car Company, Appellant, Impleaded with George E. Maurer, Defendant.
    First Department,
    March 3, 1916.
    Trial — action by insurer of automobile under subrogation clause in policy — discontinuance of action as to owner — right of other defendant to jury trial — evidence — testimony of chauffeur as to condition of steering gear.
    Where the insurer of an automobile, after paying the owner damages to the car resulting from a collision with a post while being returned to the garage company by a chauffeur employed by it pursuant to an agreement with the owner that one of its men should deliver the ear to him in the morning and should come and take it back to the garage in the evening, brought -an action against the garage company under the subrogation clause in the policy and made the owner a defendant and placed the action on the equity calendar, but before the trial the owner withdrew his answer, the other defendant had a constitutional right to a trial by jury. It is immaterial that a formal order discontinuing the action as to the owner was not entered.
    It was error in the trial of such action to refuse to allow the chauffeur to testify as to the condition of the steering gear, he having testified that something was wrong therewith.
    Appeal by the defendant, Anderson Electric Oar Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of October, 1915, upon the decision of the court after a trial at the New York Special Term.
    
      
      Thomas M. Bowlette, for the appellant.
    
      Carl Schurz Petrasch, for the respondent.
   Scott, J.:

The defendant George E. Maurer, a physician, owned an electric car, which he kept in a garage belonging to the defendant Anderson Electric Oar Company. His agreement with the company was that one of its men should bring the car to his house in the morning; that he should use it during the day, and that when he had finished with it a man should come and take it back.

On the night of the accident Dr. Maurer had completed his day’s work and telephoned to the garage for a man to be sent for the car, and the defendant Anderson Company did send a chauffeur named Shea. Shea started to the garage and in going up Columbus avenue he collided with an elevated railroad post doing considerable damage. The plaintiff, with whom Dr. Maurer was insured, paid the damage and then sued under the subrogation clause in its policy. For some reason it joined Maurer as defendant in the action although it had paid him, and put the action on the Special Term calendar as an equity cause. When the case came on for trial, before any other proceeding had been had in the case, the defendant Maurer withdrew his answer. Thereupon the defendant company moved that the case be sent to the jury term for trial. This was denied and the court went on and tried the case with the result that judgment was rendered in favor of the plaintiff against the Anderson Electric Oar Company for the amount which plaintiff had paid to the owner of the car.

Whether the action was properly brought in equity in the first place it is not necessary to determine, but it is clear that after Dr. Maurer dropped out as defendant the action remained one at law and that defendant was within its constitutional rights in insisting upon a trial by jury. This seems to have been the effect of the decision in McNulty v. Mt. Morris Electric Light Co. (172 N. Y. 410). The fact that a formal order of discontinuance had not been entered is unimportant. For this reason alone the judgment must be reversed. Further than that, upon the trial the chauffeur who was driving the car attempted to testify that just before he struck the post he discovered that something was wrong with the steering gear. He was not allowed to testify to this, however, the court holding that he could not say that anything was wrong with it unless he had been able to see what the trouble was and of course, if the gear was under the floor, it was impossible that he could do that. Nor was he permitted to testify in what manner the presumed defect manifested itself to him. "This also was error. Eor both these reasons the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., Smith, Page and Davis, JJ., concurred.

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