
    Albert F. Devuono, Respondent, v. Frank J. Muller, Defendant, and Candee, Smith & Howland Co., Inc., Appellant.
    
    Supreme Court, Appellate Term, First Department,
    December 24, 1926.
    Motor vehicles — action for damages suffered in collision — individual defendant, owner and driver of automobile, is independent contractor — corporate defendant is not liable.
    In an action for damages arising from a collision between plaintiff’s automobile and a motor truck owned and driven by the individual defendant herein, a judgment as to the corporate defendant must be reversed and the complaint as to it dismissed; since the individual defendant was an independent contractor and because he was not in the service of the corporate defendant at the time of tho accident, the latter is not liable.
    Appeal by defendant Candee, Smith & Howland Co., Inc., from a judgment of the Municipal Court, Borough of Manhattan, First District, in favor of the plaintiff against both defendants in an action for damages arising from a collision between the plaintiff’s automobile and a motor truck owned and driven by defendant Muller.
    
      John P. Smith, for the appellant.
    
      Joseph L. Ranzenhofer, for the respondent.
    
      
       Revg. 126 Misc. 669.
    
   Per Curiam.

Judgment as to appellant Candee, Smith & Howland Co., Inc., reversed and complaint dismissed as to it, with thirty dollars costs, on the ground that defendant Muller was an independent contractor engaged by the defendant, appellant, by the day, and at the time of the accident Muller was on his way to the place of business of the corporate defendant, and not doing its work.

All concur; present, Delehanty, Lydon and O’Malley, JJ.  