
    John McCauley, Respondent, v. The Fidelity & Casualty Co. and Nathan Hutkoff, Appellants.
    (Supreme Court, Appellate Term,
    April, 1896
    •1. Master and servant — Negligence.
    Where a policy of insurance upon plate glass expressly provides that in case of damage to such glass the assured shall, at his own expense, remove any woodwork, gas fixtures or other obstructions to the replacing of the glass, negligence of a servant of á contractor sent by the company to replace such glass in removing gas pipes is; not within the scope of their employment, and his master is not liable therefor.
    S. Same.
    The immediate employer of a serv.ant is alone responsible for bis-negligent acts.
    Appeal from a judgment for the plaintiff rendered by the District Court in the city of New York for the Eighth Judicial District.
    Action to recover damages for' injury to personal property alleged to have been caused by. the negligence of the defendant’s employees.
    Yellot-t D. Dechert,.t for respondent.
    David Leventritt and Albertns- Perry, for appellants.
   Bischoff, J.

The defendant, The Fidelity & Casualty Company, insured the plate glass in the plaintiff’s premises. By the third clause of the policy the company agreed, at its option, to replace the glass, or -to pay the aictual value of the glass broken. The policy further provided: “ Whenever necessary, the assured shall, at his own expense, remove any woodwork, gas fixtures, or other obstruction to the replacing of the glass.”

- The plaintiff notified the defendant company. that the glass in his' store window was broken, and thereupon the company notified-, the defendant Hutlcoff, with whom it had a contract for that: purpose, to replace the broken pane. Hutkoff sent Ms workmen to replace the glass. They found that the gas pipes outside the window interfered with the work, and notified the clerks in the store that they'would, have to be removed. Plaintiff leased the store to one Pape and the two men in charge of it were his employees.

The justice -has found on conflicting testimony that the defendant Hutkoff’s men worked at the pipes and negligently .detached two lengths in the cellar arid basement, so that when the gas was lighted that evening an ■ explosion occurred which caused the ■damage complained of in this action.

A master is ordinarily' liable to a third person injured through the negligence of his servant while acting within the scope- of his employment. 14 Am. & Eng. Ency. of Law, 804; Mott v. Consumers’ Ice Co., 73 N. Y. 543, 547. “ The test of the master’s responsibility for the act of his servant is not whether such act Was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do.” Cosgrove v. Ogden, 49 N. Y. 255, 257. Here the duty of the servant was fixed by the contract of insurance, which placed-the obligation of removing gas pipes, and other obstructions, upon the owner. -. This was known' to all the parties interested. If, therefore, Hutkoff’s employees endeavored to, remove the .gas-pipes, they acted in so doing neither within the scope nor within the course of their employment, and the defendants cannot be held liable for such acts.

The judgment as rendered against both defendants is erroneous. The immediate employer of a, servant is alone responsible for the latter’s negligent acts. There cannot be two superiors severally responsible in such a case. . Blake v. Ferris, 5 N. Y. 48.

The judgment must be reversed as to each defendant, with costs to abide the event of a riew trial, which is hereby directed.

Daly, P. J., and McAdam, J,, concur.

Judgment .reversed, and a new trial directed, with costs .to abide event.  