
    (March 18, 1957)
    Thomas J. Agell, Appellant, v. Waterman Steamship Company, Respondent.
   In an action under the Jones Act (U. S. Code, tit. 46, § 688), the appeal is from an order granting a motion to dismiss the complaint and directing the entry of judgment dismissing the action and complaint, and from the judgment entered thereon. Order and judgment reversed, with $10 costs and disbursements, and motion denied, without costs, and without prejudice to renewal of the motion upon proper papers. The order of the Special Term appears to have been based on a finding that, pursuant to an agreement between respondent and the United States, respondent was the general agent of the United States and could not be held liable under the Jones Act. (See Cosmopolitan Co. v. McAllister, 337 U. S. 783.) There was no basis for this finding. The court below had before it only the pleadings and affidavits which present factual issues. The answer and the affidavit in support of the motion fail to plead the text or substance of the agency agreement, and no copy of said agreement is attached to either the answer or the affidavit. Respondent’s assertion on appeal, that the agreement is a matter of public record which should be judicially noticed, is not supported by any reference to the time and place of public recording. A reference to the public record of the general form of the agreement is not sufficient. Wenzel, Acting P. J., Beldoek, Murphy, Hallinan and Kleinfeld, JJ., concur.  