Though Breen testified that over a period of years he had purchased ten or twelve secondhand cars for use in his business as an insurance agent, he did not, at any time, purchase an automobile from defendant, Gifford gales & Service, Inc. When he went into defendant Gifford’s place of business on August 19, 1938, he was a total stranger. After expressing a desire to purchase a certain used Chevrolet, he was given permission to take such car for the purpose of testing it. While trying the Chevrolet, he had trouble with it and the car was brought back to the Gifford garage.
On the morning of the following day, Breen returned to Gifford’s shop and learned from the mechanic, Morehouse, that the Chevrolet had not been repaired. The mechanic was the only one on duty at the time. According to Breen, while the mechanic was busy, on his ££ own initiative,” Breen took a Ford car which was standing in the garage. That he did not obtain permission to take the Ford was emphasized by his admissions in response to numerous questions both on his direct and cross-examination.
This witness was pointedly asked whether the mechanic saw him take out the Ford. His answer was £< No.” Morehouse, on the other hand, when asked whether he saw Breen take the car out, replied that he did not know that Breen had removed the Ford until he saw Breen down the street driving away from the garage. A few minutes after Breen had driven off, Leon Gifford arrived at the garage and the incident about the Ford car was reported to him. Thereafter, and on the same morning, Gifford notified the police of the theft. The testimony of these witnesses on this score was in no way controverted.
The accident out of which this litigation arose occurred two days later while Breen, at least, as he claims, was returning in the Ford to Saratoga Springs from Leonia, New Jersey. The record shows that Breen was later indicted by the grand jury of Saratoga County for the theft. He pleaded guilty to grand larceny in the second degree (Penal Law, § 1293-a) and was sentenced to State’s Prison for not less than one year nor more than two years, but execution of the sentence was suspended during his good behavior. Thus, upon his own confession, *800Breen was adjudged guilty of a felony for the larceny of appellant’s automobile in that he had taken the motor vehicle without the owner’s consent. Plaintiff, nevertheless, has obtained a judgment in this action based upon the theory that at the time of the accident Breen was driving the car with appellant’s permission.
It is true that Breen, when interrogated as to whether he decided to plead guilty and accept a suspended sentence, replied that “ They asked me to do that.” This statement, however, when considered with the preceding answers of Breen clearly evidences that this witness was not claiming that any person on behalf of defendant Gifford Sales & Service, Inc., made any suggestion to him about pleading guilty. The only reasonable inference that can be drawn from the testimony is that Breen was told, apparently by an attorney representing him, that if he pleaded guilty he would receive a suspended sentence.
Several months elapsed before Breen was indicted. No reason was furnished on the trial for the delay. Accordingly, there is no basis for the plaintiff’s intimation that defendant Gifford Sales be deemed responsible for the delay, particularly as to a matter over which Gifford could have had no control.
While proof of ownership is sufficient to establish prima facie that a custodian operating the car is engaging it in the owner’s service, that presumption disappears where, as here, upon all the evidence it is conclusively shown that no permission was given. (St. Andrassy v. Mooney, 262 N. Y. 368; Fluegel v. Coudert, 244 N. Y. 393; Der Ohannessian v. Elliott, 233 N. Y. 326; Rathfelder v. Flag, 257 App. Div. 71, affd. 282 N. Y. 563.) Indeed, it has been held that where permission to use a car is actually given, if such consent is restricted to a particular place, the owner cannot be held responsible if an accident occurs while the car is being used in another locality. (Chaika v. Vandenberg, 252 N. Y. 101.)
The only conclusion that reasonably can be drawn from the evidence in this case is that at the time of the accident Breen operated the car unlawfully and without the permission of defendant Gifford Sales & Service, Inc. As to this defendant, there was no issue of fact to be presented to the jury and the complaint should have been dismissed.
The judgment should, accordingly, be reversed and the complaint dismissed.
Untermybr and Callahan, JJ., concur with Dore, J.; Cohn, J., dissents and votes to reverse and dismiss the complaint, with opinion, in which Martin, P. J., concurs.
Judgment affirmed, with costs.