The opinion
McCurn, J.
(dissenting). While the registration certificate is not under our statutes a certificate of title, I disagree with that part of the above opinion which states in substance that the State in issuing a certificate of registration owes no duty to a subsequent purchaser of the motor vehicle so registered. The statutory provisions clearly indicate that at least one principal purpose for registration of motor vehicles is to afford a means of identification of the owners thereof. Our courts have accordingly held that the registration certificate is prima facie evidence of ownership (Ferris v. Sterling, 214 N. Y. 249 ). The statute and the rules promulgated by the Commissioner of Motor Vehicles make provision for the relicensing upon the sale or transfer of ownership of a registered motor vehicle. It is a matter of common knowledge that upon the sale of a motor vehicle the registration certificate is important, if not indispensable evidence as to the title of the seller. The important part which it plays in preventing the disposal of stolen cars has been judicially recognized. (See Armstrong v. Boomansour, 223 App. Div. 511, 516 , affd. 252 N. Y. 590 .)
The State’s duty to a subsequent purchaser in the issuance of a license arises from the hazard or risks reasonably to be foreseen. That the risk to the claimant here was not only *288 reasonably foreseeable but actually was foreseen, is evident from the fact that the Commissioner of Motor Vehicles notified its license issuing offices, including the Auburn office, of the theft of the MV50, with instructions to “ withhold any of the above certificates with applications if presented at your office and notify the local police authorities.” In Benenson v. National Surety Co. ( 260 N. Y. 299, 303 ), the court while stating that it had no application to that case, nevertheless recognized and stated the rule that “ ‘ the mere intervention of a crime does not break the sequence of cause and effect if the crime might reasonably have been foreseen when the original default occurred ’ ”. The issuance of the license under the circumstances here, including the unexplained failure of the commissioner’s representative at the Auburn office to comply with the instructions furnishes a sufficient basis for the finding of negligence and proximate cause.
The question of claimant’s contributory negligence should be determined from the circumstances apparent at the time he acted rather than from subsequent developments. ‘ ‘ The test of contributory negligence or want of due care is not always found in the failure to exercise the best judgment or to use the wisest precaution. Some allowance may be made for the influences which ordinarily govern human action, and what would under some circumstances be a want of reasonable care might not be such under others (Lent v. New York Central & Hudson Riv. R. R. Co., 120 N. Y. 467, 473 .) The standard for measuring his conduct is that of a reasonably prudent man under like circumstances. It presented a question of fact for the trial court, and in my opinion, nothing appears in this record which should prompt us to set aside the trial court’s finding as either contrary to or against the weight of evidence.
I dissent and vote for affirmance.
All concur with Piper, J., except McCurh, J., who dissents and votes for affirmance, in a separate opinion. Present — Taylor, P. J., McCurk, Vaughau, Piper and Wheeler, JJ.
Judgment reversed on the law and facts and claim dismissed, without costs of this appeal to either party. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.