Sullivan, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
In this wrongful death action defendant, Dominick Panzarino, appeals from a judgment of the Law Division entered on a jury verdict in favor of plaintiff, administratrix ad prosequendum. The deceased, Maria Panzarino, was killed in an automobile accident in New Jersey when a car driven by her husband, Nicholas Panzarino, and owned by his father, Dominick Panzarino, collided with an automobile driven by defendant, Matthew Woodson.
On February 29, 1964 Nicholas borrowed Dominick's automobile in Brooklyn, New York for the purpose of driving to Garfield, New Jersey to pay respects to a deceased
member of the family, He took with him his wife, mother-in-law, brother-in-law, sister-in-law and four children. All of these persons, and also Dominick, were residents of the State of New York. The Panzarino vehicle was registered in that State. The fatal accident occurred in Passaic, New Jersey. Woodson was a New Jersey resident.
When the case came to trial Dominick Panzarino sought to invoke the New Jersey rule that the owner of a motor vehicle being operated in this State is only liable for the negligence of the driver thereof if an agency relationship is established. Plaintiff contended that under the facts and circumstances of this case the liability of the owner was governed by a New York statute which provides:
"Every owner of a vehicle used or operated in this State shall be liable and responsible for a death or injuries to persons or property resulting from negligence in the use or operation of such vehicle in the business of such owner or otherwise by any person using or operating the same with permission expressed or implied of such owner." Vehicle and Traffic Law, McKinney's Consol. Laws, c. 71, sec. 388.
The trial court in its main instructions charged this statute to the jury. In the course of its deliberations the jury through its forelady presented to the court the following question:
"Does New York law regarding ownership and accident liability of an accident which occurs apply in New Jersey?"
"My answer to that inquiry is, yes, it does apply."
The appeal therefore turns upon the applicability and construction of ...