Burgess v. Fadden (22 A.D.2d 713, 1964)

Hamm, J.

The defendants-appellants, Joseph Robert Fadden and Joseph Robert Fadden, Jr., are respectively father and son. They appeal from a judgment against them entered on the verdict of a jury. Father and son appeared by separate attorneys on the trial and have filed and served separate notices of appeal and briefs. The plaintiff-respondent sued to recover damages for personal injuries sustained when he was struck in the leg by a power saw owned by the father and operated by the son, while the son was clearing land owned by his father and mother. On this appeal the appellants do not contest either the negligence of the son or the reasonableness of the verdict.

The sole issue raised by the father is stated in his brief as follows:

“Actually there was no question of fact involving agency for the jury to decide. At best, there might have been an inference of implied permission or authority for the son to use the power saw in the absence of his father and without his supervision. This was a far cry from the conclusion that the son thereby became the agent of his father.