
    Francis Darmstadt, Respondent, v. Alfred Fischler, Doing Business under the Name of Al’s Atlas Service Station, Appellant.
    Supremo Court, Appellate Term, Second Department,
    December 18, 1947.
    
      Paul Wolfe and I. Stanley Stein for appellant,
    
      David A. Krakoff for respondent.
   Memorandum Per Curiam.

Plaintiff swore the motor was very hot. He knew that when he ordered the gasoline put into his tank above the motor. He watched closely the meter on the defendant’s pump, and knew the capacity of the tank. Nevertheless with this knowledge and knowledge that more than he had asked had been pumped in and was continuing to be pumped, he said nothing to the defendant’s servant. According to plaintiff, gallonage equal to the capacity of the tank had been pumped before he got out of the car, nevertheless he looked silently on while the gasoline was still entering the tank. He was guilty of contributory negligence. The following cases cited by firm held the defendants there negligent but also held that conduct akin to his amounted to contributory negligence. Strand v. Everett (84 Cal. App. 358) and Standard Oil Co. v. Evans (154 Miss. 475).

The judgment should be unanimously reversed on the law, with $30 costs to defendant and complaint dismissed, with appropriate costs in the court below.

MacCrate, Steinbrink and Fennelly, JJ., concur.

Judgment reversed, etc.  