
    Louis Vasligato, an Infant, by Frank Vasligato, His Guardian ad Litem, Appellant, v. Yellow Pine Company, Respondent.
    Second Department,
    October 31, 1913.
    Master and servant—negligence — master not liable for injuries caused by negligence of truck driver furnished by third party.
    Where in an action to recover for personal injuries brought by a plaintiff who was run over by a truck, it appeared that the defendant hired the truck, team and driver from a truckman and had no authority to select, engage or discharge the driver but merely told him where to go, the legal relation of master and servant did not exist between the defendant and the driver, and the complaint was properly dismissed.
    Appeal by the plaintiff, Louis Vasligato, an infant, etc., ' from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of May, 1913, upon a dismissal of the complaint at the close of the case by direction of the court after a trial before the court and a jury at the Kings County Trial Term.
    
      Frederick S. Martyn [Frank V. Johnson with him on the brief], for the appellant.
    
      Edgar J. Treacy [Samuel Greason, Jr., with him on the brief], for the respondent.
   Putnam, J.:

At a time when defendant had to make large deliveries of lumber, it engaged extra horses and drivers from a public truckman, one James J. McAllister. While driving along Hudson avenue, Brooklyn, a lumber truck, owned and used by defendant, but driven by a driver furnished by McAllister, ran over the plaintiff. This driver received his wages weekly from Mr. McAllister. On the morning of this accident the driver had reported to the McAllister stables, where he took his orders for the day. He was to harness his horses, go with them to defendant’s lumber yard and drive out defendant’s loaded trucks, as defendant directed. At the yard the driver was given the destination of his loads and he proceeded to make deliveries without being accompanied by any representative of defendant. At the end of the month defendant paid Mr. McAllister at the rate of seven dollars a day for the horses and driver. Defendant could not select, engage or discharge the driver; if dissatisfied, defendant could only complain to Mr. McAllister, and perhaps demand another driver to be substituted. The defendant had merely told the driver where to drive, without directing his route or otherwise interfering with the driver’s actions.

These undisputed facts showed that the driver remained the servant of his general employer, and had not come under the exclusive control of defendant. As the legal relation of master and servant did not exist between the defendant and this driver, the complaint was properly dismissed. (Kellogg v. Church Charity Foundation, 203 N. Y. 191; Weaver v. Jackson, 153 App. Div. 661.)

I advise that the judgment of dismissal be affirmed, with costs.

Present—Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

Judgment unanimously affirmed, with costs.  