
    Philip Diamond, Respondent, v. Sternberg Motor Truck Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    November, 1914.)
    Evidence — consideration of evidence in action for personal injuries — when judgment in favor of plaintiff reversed — automobiles.
    The evidence in an action to recover for personal injuries alleged to have been caused by defendant’s automobile truck, considered, and a judgment in favor of plaintiff reversed and a new trial granted, on the ground that if there were any liability it was that of the lessee of the truck and not that of the defendant.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Bronx, second district, after a trial by a judge without a jury.
    Walter C. Evans (Walter R. Kuhn, of counsel), for appellant.
    Henry Lieb, for respondent.
   Bijur, J.

Plaintiff sued for personal injuries caused by an automobile truck. The evidence shows, without contradiction, that the truck was owned hy the defendant, and that the wages of the chauffeur were paid by the defendant; that the truck, however, was rented out to another concern, the Turner Company, which was engaged in snow removal; that the chauffeur took his instructions from that company, and that, in point of fact, although his wages were, under the agreement, to be paid by the defendant, he, personally, had been hired for this job by the Turner Company. Under the circumstances, if there is any liability, it is that of the Turner Company and not of the defendant under the rule which we have followed in Di Salvo v. Larkin & Son, Inc., 83 Misc. Rep. 111. See, also, Hanatsek v. Wilson, 161 App. Div. 634.

Judgment reversed and new trial granted, with costs to appellant to abide event.

Seabury and Cohalan, JJ., concur.

Judgment reversed.  