Lawson & Lawson for plaintiff. Brown & Gallagher for James Polimeni and another, defendants. Gordon, Gordon & Siegel for Dorp Motors, Inc., defendant.
of the Vehicle and Traffic Law and the regulations of the Commissioner of Motor Vehicles. Here, too, there was a failure to comply with the statute and regulations. In the
Switzer case, however, the holding was to the effect that,
as to a person injured, the dealer would be estopped from rebutting the prima facie presumption of ownership established by proof of the issuance to him of the plates on the vehicle which caused injury, by proof which established violation of a statute and regulations of the Commissioner of Motor Vehicles. So, here, defendant, Dorp Motors, Inc., perhaps cannot,
so far as plaintiff is concerned, overcome the prima facie presumption against it arising from the presence of its plates on the truck involved in the collision in which plaintiff claims to have been injured. The liability in favor of plaintiff thus cast upon defendant, Dorp Motors, Inc., is not the result of any active negligence on its part. It arises by reason of section 59 of the Vehicle and Traffic Law and the denial to it of any right to rebut the presumption of ownership, under the rule laid down in the
Switzer case (
supra). That case is not an authority, however, for the proposition, that, as between these defendants, the defendant, Dorp Motors, Inc., may not recover over against the defendants, Polimeni and DeLorenzo, by a showing of the true facts as between them; the agreement between them and its violation. The doctrine of estoppel, applied in the
Switzer case (
307 N.Y. 56,
supra), as to the injured person, does not expressly or in reason, apply to the claim over of defendant, Dorp Motors, Inc., against the defendants, Polimeni and DeLorenzo. Motion denied.