
    Harry Miranker, Respondent, v. William E. Williams, Appellant; Jenaro Assiro, Also Known as Jerry Asciero, and Thomas Assiro, Also Known as Thomas Asciero, Defendants.
    (Supreme Court, Appellate Term, First Department,
    April, 1916.)
    Negligence — liability for injuries to child — contracts — assumption of liability.
    Defendant, engaged in the business of selling supplies to contractors and steamships but owning neither horses nor trucks, contracted with a licensed truckman to make deliveries and to put his name plate on the trucks while such deliveries were being made. Held, that defendant was not liable for injuries to a child resulting from the negligence of the driver of one of said trucks whose owner alone selected, hired and paid him, as to render defendant liable as employer the actual control and dominion over the driver must have been surrendered by his regular employer and assumed by defendant.
    Lehman, J., dissents.
    Appeal by defendant Williams from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, rendered in favor of the plaintiff after a trial by the court without a jury.
    Rufus L. Weaver, for appellant Williams.
    Breitbart & Breitbart (Bernard Breitbart and Gleorge P. Hickey, of counsel) for respondent.
   Delehanty, J.

The plaintiff has recovered damages suffered through injuries to his infant son resulting, as alleged, from the negligence of one Paretti, the driver of the truck which collided with a bicycle ridden by the infant. The main question involved in the appeal is whether or not the defendant is responsible as master for the negligence of the driver of the truck. It appears that the defendant Williams was in the business of selling supplies for contractors and steamships, which necessitated hauling for delivery of his goods. He owned no horses nor trucks but contracted with one Assiro, a licensed truckman, to make deliveries and to put his name plate on the trucks while such deliveries were being made. This practice prevailed for three years prior to the accident in question. During all that time Assiro had in his employ the driver, Paretti, whose duty it was to go daily to the stable where the truck was kept and, without further directions, proceed therewith to the defendant’s place of business, where he would receive directions from the defendant’s shipping clerk. This he did on the day of the accident. Paretti was not alone selected, hired and paid by Assiro, but Assiro was the only one who could discharge him. The trial justice held that Paretti was in the employ of defendant, and this we think was error.

Cases such as these present the somewhat difficult question whether one in the general employment of one person is, with respect to a particular transaction, the servant of another. There are numerous authorities pro and con upon the subject, but all to the effect that to render a defendant liable the actual control and dominion over'the servant must have been surrendered by the regular employer and assumed by the person in whose business he is engaged at the time of the accident. The case at bar we think, in principle, is not unlike Kellogg v. Church Charity Foundation, 203 N. Y. 191; Weaver v. Jackson, 153 App. Div. 661; Vasligato v. Yellow Pine Co., 158 id. 551.

In the Kellogg case the defendant owned, controlled and managed a hospital, and in connection therewith owned and used an ambulance. As occasion arose for the use of the ambulance, a livery-stable keeper furnished a horse and driver therefor, the driver being directed by defendant where to go. The driver was employed by the stable keeper by the week, and when not engaged in driving the ambulance worked around the stable. The injury to the plaintiff resulted from his negligent driving of the ambulance. It was held that defendant was not responsible for the driver’s negligence. The opinion cites Standard Oil Co. v. Anderson, 212 U. S. 215, to the effect that: “ The simplest case, and that which was earliest decided, was where horses and a driver were furnished by a liveryman. In such cases the hirer, though he suggests the course of the journey and in a certain sense directs it, still does not become the master of the driver and responsible for his negligence, unless he specifically directs or brings about the negligent act.”

In the present case there is not the slightest claim that Williams interfered in any way with Paretti’s management of the truck in question. True, he directed Paretti when and where to make deliveries, but not how to manage or control his horse and truck, or the way to reach his destination.

In Weaver v. Jackson, supra, an action for personal injuries sustained by the fall of a heavy case of goods, caused by the negligence of the driver of a truck, in permitting it to start away from a platform, it appeared that plaintiff’s master, one Sternau & Co., had the exclusive use of the horse and truck which was furnished by defendants at a fixed rate per week, under an agreement that defendants should assume responsibility from the time the goods were delivered to them until they were delivered at their destination. The defendants employed and paid the driver, whom they selected and had the right to discharge. The plaintiff’s master did not interfere in any way with the management of the truck and horse by the driver. The complaint was dismissed upon the theory that the driver of the truck was the servant of the plaintiff’s master. Judge Scott, writing for a unanimous court, held that the case under consideration fell directly within the principle enunciated in Kellogg v. Church Charity Foundation, supra, and many others to the same effect. His opinion concluded, and I quote it for its application to the case at bar, as follows: “ The driver of the truck was employed and paid by defendants who alone selected him and had the sole and complete power to discharge him. So far as concerned the times and places at which deliveries were to be made, the driver was undoubtedly subject to the orders of Sternau & Co., but so far as concerned the handling and management of the horses and truck, he was the defendants’ servant. The distinction is perfectly clear, and has frequently been pointed out. ’’

In Vasligato v. Yellow Pine Co., supra, it appeared that when defendant had to make large deliveries of lumber it engaged extra horses and drivers from a public truckman, one McAllister. While driving a lumber truck owned and used by defendant, but driven by a driver furnished by McAllister, it ran over plaintiff. This driver received his wages from McAllister. On the morning of the accident the defendant had reported at 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 load and he proceeded to make deliveries without being accompanied by any representative of defendant. At the end of the month defendant paid 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 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 his actions. Held, that the driver remained the servant of his general employer and had not come under the exclusive control of defendant; that as the legal relation of master and servant did not exist between the defendant and the driver the complaint was properly dismissed, citing Kellogg v. Church Charity Foundation, supra, and Weaver v. Jackson, supra.

In the present case Paretti was selected, employed and paid by Assiro, who alone could discharge him. This, in our opinion, in view of the authorities cited, made him the servant of Assiro and not of Williams.

The respondent calls to our attention and relies upon Higgins v. Western Union Telegraph Co., 156 N. Y. 75, and Howard v. Ludwig, 171 id. 507, for a sustention of the judgment herein, but those authorities are clearly distinguishable from the facts herein. In the Higgins case a building owned by defendant had been damaged and a contractor was engaged in repairing and restoring it, and, among other things, was to furnish elevators and they were then in his control and use. He needed a man to assist him in operating one of the elevators and obtained from defendant one Algar for that purpose, whose negligent operation of the elevator was responsible for the accident. The distinguishing feature in that case is that the contractor had control of the elevator. It was his property and it was he who gave orders to Algar.

Howard v. Ludwig was decided by the Court of Appeals in 1902 by a closely divided court and is well distinguished by Mr. Justice Scott in Weaver v. Jackson, supra.

In view of the foregoing we conclude that the judgment herein should be reversed, with thirty dollars costs, and the complaint dismissed, with costs.

Weeks, J., concurs; Lehman, J., dissents.

Judgment reversed, with thirty dollars costs.  