
    Annie M. Ryan, Respondent, v. Henry Phipps, Appellant.
    First Department,
    November 3, 1911.
    Master and servant — negligence — voluntary services — evidence of fellow-servant.
    A master is not liable for the negligence of one volunteering services to his servant whereby another, likewise volunteering services, is injured.
    A maid in defendant’s employ was sent to New York city to prepare his city house for the arrival of his family. She arrived in the evening. The night watchman saw .her and rang the bell for her. He had no duty to perform inside the house, and had no key with which to enter it. The housekeeper not answering the bell the watchman, without any request or suggestion from the maid, went across the street to find plaintiff, who was hired by the day to clean in the house. She had been there that day, and the watchman thought she might have a. key. She came across the street and told the watchman that they might get in, througbfsome windows she had been cleaning and had left unlocked. He went to the main entrance, requesting plaintiff, as she claimed, to follow him, and opened the gate. As they passed in she fell over a board which had been placed to prevent the gate from being forced in and whs injured. • •
    
      Held, that she could not recover of the defendant for her injuries;
    That both the watchman and plaintiff were acting as volunteers in aiding the maid to obtain entrance to the house;
    That what plaintiff did was not within the scope of her employment; and That, as the only negligence charged was the failure of the watchman to warn plaintiff of the board, she could not recover even if she had been acting in the course of her employment, for she and the watchman would then be fellow-servants.
    Appeal by the defendant, Henry Phipps, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of. February, 1911, upon the verdict'of a jury for $5,000, and also from an order entered in said clerk’s office on the 3d day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Vernou Bouvier, Jr. [Edward F. Lindsay with him on the brief], for the appellant.
    
      Charles Steckler [Levin L. Brown with him on the brief], for the respondent.
   Laughlin, J.:

The plaintiff has recovered a judgment for personal injuries on the theory that they were caused by. the negligence of the defendant. . The defendant owned the private residence situate at the northeast corner of Fifth avenue and Eighty-seventh street in the borough of Manhattan, New York. The accident occurred at about seven-thirty o’clock on the evening of the 29th day of September, 1908. At this time the house had been closed for the summer and the defendant and his family were at Lenox, Mass. He had left a housemaid in charge of the house, and employed a night watchman to "protect the outside of the building and prevent trespassing' between the hours of seven o’clock in the evening and seven o’clock in the morning. The night watchman had no duty to perform in the interior of the building, and had ho key with which to enter it. The yard between the house and the street was inclosed on the lines of each street by a marble wall covered with boards. On Eighty-seventh street some distance easterly there was an opening in the wall from eight to fourteen feet in width — both widths are given in the testimony —'forming the maih' entrance to the house.- At the time in question it would seem that the permanent gate had not been placed in this entrance. On either side Was a high coin mu and the opening between them was boarded up about eight feet in height with a door for pedestrians which was kept locked and to which the night watchman had a key. Easterly of 'this entrance there was another entrance to the garage, with a large door at the street line, within which was a smaller door which was used by tradespeople and the servánts. The defendant and his family determined to return to New York and occupy the house on the evening of September 29, 1908. A maid was sent on ahead with the baggage to open the house and unpack. She arrived shortly after seven o’clock probably, although she testified that it was eight-twenty, and she entered the premises through the door customarily used bya tradespeople and servants. The'night watchman saw her as she arrived and accompanied her and rang the bell to the servants’ door for her. The bell was not answered by the housemaid, who, however, was in, for some twenty minutes.

The accident happened on Tuesday. On that day and several days before plaintiff had been working in the house sweeping and cleaning. She was hired by the day, and received one dollar and fifty cents per day,- but it does not appear by whom she was hired or paid. She had been paid for two days’ work, but her work was' not finished, and she had been employed to return and resume it the following morning. On receiving no answer to the bell, the night watchman without any request or suggestion by the maid went across the way, according to his testimony, to interview the plaintiff, who lived in an apartment at Nos. 16 and 18 East Eighty-seventh street, with a view to ascertaining whether or not the housemaid in charge of the house was in as he knew that plaintiff had left there at six o’clock and would likely know. The plaintiff testified that he informed her that one-of the maids had arrived, ahd that the family were to arrive shortly, and asked whether she knew where the housemaid in charge of the house was, and whether she had a key; that she informed him that the housemaid had been ill all day, but that in cleaning the windows that day she had opened them and on shutting them did not lock them, and that perhaps he could get in that way, whereupon he requested her to accompany and show him; that she accompanied him, and they entered through the servants’ entrance, and after conversing with the maid who had arrived to open the house and an engineer who was with her, the night watchman requested her to '“come along quick ” and show him “ the window; ” that it was very dark and she followed him out onto the street the way they entered, and to the • door of the main gateway which opened outward toward the street; that the night watchman pulled the door- open and she thereupon started to walk in and stumbled on a board which she did not know was there, as she had never entered that way “before, and fell, sustaining the injuries for which she seeks to recover damages; and that the night watchman said nothing to her when he opened the door. ■ The board on which the plaintiff tripped or stumbled extended edgewise across the gateway and its top was about nine inches above the walk. It was designed to prevent the gate being forced in. The night watchman denied that he requested the plaintiff to accompany him and show him the window which had been left unlocked.. He claims that she followed him and overtook him on his arrival at the Phipps mansion, and then informed him about the opening of the window, and that he unlocked the door, or gate, with a. view to entering, not to obtain access to the house, but to close'any window found opened, and that without any invitation from him, or knowledge on his part that she was to do so, the plaintiff immediately entered as the gate swung open. In the view we take of the case it may he assumed that the jury believed the testimony of the plaintiff instead of that of the watchman.

Accepting the testimony of the plaintiff as to the purpose for .which the gate was opened, then on the uncontroverted evidence the night watchman was not engaged in the performance of any duty which he owed to the defendant, which authorized him, as representing the defendant, to call the plaintiff to his aid, and would render the defendant hable for any act of negligence on his part. The only negligence charged is the failure on the part of the night watchman to inform the plaintiff of the location of this board and to warn her of the danger of tripping or stumbling over it. There was no negligent construction by defendant and no personal negligence on his part. He had sent no word to. the night watchman by the maid either enlarging or changing his duties, and she did not ask him to assist her. At most, he was a volunteer in aiding the maid to obtain access to the house, as was also the plaintiff, for any act on her part with respect to aiding the maid or the night watchman in obtaining access to- the house was not within the scope of her employment and likewise had not even been requested by the inaid. She may have acted -upon the theory that she owed the duty to the defendant by virtue of her employment in his service; but if-this were correct she would be coservant with the night watchman and could not recover for his negligence. (Erjauschek v. Kramer, 141 App. Div. 545.) There are eases in the books in which an employer has been held liable for the negligence of an employee toward another called' to his assistance in an emergency (Geibel v. Elwell, 19 App. Div. 285; but see Cannon v. Fargo, 138 id. 20), but we know of no principle of law, or precedent, for holding a master liable for the negligence of one volunteering services to an employee by which another, likewise volunteering services, sustains injury. Here there was no emergency. The housemaid was in the house and she opened the door within about twenty" minutes and defendant had not even left his property in a negligent or dangerous condition. We do not deem it necessary to analyze the authorities cited, for we deem them all plainly distinguishable from the case at bar on the facts. We express no opinion on the question as to whether or not the acts and omissions of . the night watchman would constitute negligence if defendant were liable therefor.

If follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to, abide the event.

Ingraham,. P. J., Scott, Miller and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  