Sidette Lazofsky et al., Respondents, v. City of New York, Appellant-Respondent, and Gull Contracting Co., Inc., et al., Appellants, 22 A.D.2d 858

Judgment insofar as it directs execution in favor of plaintiff Herbert Lazofsky in the sum of $22,771, unanimously modified, on the law, and on the facts, to the extent of vacating that part of the judgment and granting a new trial as to said plaintiff, and, as so modified, affirmed, with $50 costs to defendants-appellants, unless said plaintiff stipulates to accept $12,500 in lieu of the award by verdict, in which event the judgment is modified to that extent, and is affirmed as thus modified, with $50 costs to defendants-appellants.

In this personal injury action it is evident that the jury verdict as to the said plaintiff is excessive in its award of damages and that a verdict in excess of $12,500 is not warranted by the record. In the event this ease is retried, defendants are not entitled to a charge as requested by them that the negligence, if any, of plaintiff Sidette Lazofsky is to be imputed to the plaintiff Herbert Lazofsky. At common law a licensed driver accompanying a learner is not liable for the negligence of the learner. (4 N. Y, Jur., Automobiles, § 423; Sardo v.

Herlihy, 143 Misc. 397.) However, a licensed driver aecompanying a learner may be held liable when he neglects to use reasonable care as an instructor. (Wolpert v. Garrett, 278 App. Div. 893; Spaulding v. Mineah, 239 App. Div. 460, affd. 264 N. Y. 589.) The licensed driver is not in the position of the master of the learner-driver and negligence of the learner-driver is therefore not imputable to him. (Wolpert v. Garrett, supra.) The licensed driver owes, however, the duty of general care in the supervision of the learner-driver.

Further, the licensed driver is not in the same position as a passenger as charged by the court. If the learner-driver is negligent, it is the duty of the licensed driver to take the necessary measures to have the learner-driver cease and desist his negligent conduct since the statute (Vehicle and Traffic Law, § 501, sttbd. 4, par.

b) places control of the learner-driver in the licensed driver which is not so in the case of a passenger. Settle order on notice. Concur—Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.