Plaintiff, individually and in his representative capacity, has recovered damages arising out of an accident in which the car he was operating was struck by a car owned by defendant and operated by Donald P. Smith without defendant’s permission. Implicit in the verdict is a finding that defendant left his car unattended without locking the ignition and removing the key in violation of subdivision (a) of section 1210 of the Vehicle and Traffic Law, and that this was negligence and a proximate cause of the accident. The court correctly charged the jury that if the ignition was locked and the key was in the glove compartment, defendant had not violated subdivision (a) of section 1210 of the Vehicle and Traffic Law and was not negligent.
Defendant testified that after he parked his car, he removed the ignition key and took it with him, but that another ignition key, belonging to his daughter, was in a blue key case in an unlocked glove compartment under some papers. He stated he had borrowed it from her about a month before the accident and had forgotten it was in the glove compartment, and that her key was in the ignition when he retrieved his car.
Defendant’s witness, Mastrangelo, testified that some time *233prior to the accident defendant had locked his ignition key in the trunk, and he obtained the blue case from defendant’s daughter and took it to defendant and saw defendant put it in. the glove compartment. He also testified that he was with defendant on the night of the accident and saw defendant remove his keys from the car and take them with him. A police officer testified that when defendant reported his car stolen, he had an ignition key with him.
The only evidence to the contrary was the testimony of Smith that he was looking for a car with keys in the ignition and thought defendant’s key was in the ignition but was not sure. He also testified that a companion had entered the car first and was looking in the glove compartment when he got in the car, and it is possible that the companion found the key in the glove compartment and put it in the ignition.
Consequently, the jury’s finding that defendant left his key in the ignition is against the weight of the evidence, and the verdict should be set aside and a new trial granted. (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Westbrook v. Green Bus Lines, 30 A D 2d 959; 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5522.03 ; 8 Carmody-Wait 2d, New York Practice, § 62:6.)
Marsh and Gabrielli, JJ., concur with Del Vecchio, J. P.; Moule and Henry, JJ., dissent and vote to reverse and grant a new trial in separate opinions.
Judgments affirmed, with costs.