
    Gilligan, Respondent, v. Gerry et al., Appellants.
    
      (Common Pleas of New York City and County, General Term.
    
    June 16, 1890.)
    Appeal from tenth district court.
    Action by John Gilligan against Allston Gerry and another.
    Argued before Larremore, C. J., and Bookstaver and Bisohoff, JJ.
    
      L. L. Kellogg, for appellants.
   Per Curiam.

After a careful perusal of the evidence in this case, we are satisfied that justice will be promoted by ordering a new trial. From that evidence it appears that in December. 1889, and for some time prior thereto, Louis Cattabery was engaged as subcontractor in doing work on the line of the New York, New Haven, & Hartford Railroad, in the vicinity of 170th street. While he continued this work he hired all the laborers, and no one else was responsible for their payment. On the 28th of December, 1889, the work was taken away from him by the defendants. Up to that time in December the plaintiff was employed by Cattabery and not by the defendants. McCahill was at that time paymaster for Cattabery and not for the defendants. For the work done after that time, we think it is very clear that the plaintiff was paid by McCahill, as paymaster for the defendants, partly in money and partly in a board bill, which was paid by plaintiff’s direction, who was present when the order was given. We also think the testimony of the plaintiff as to who were defendants’ agents in December was Improperly admitted; that the testimony does not establish such agency. It seems to us very clear that Toner was not acting for the defendants in December. For these reasons the judgment should be reversed, and a new trial ordered, with costs to abide the event.  