
    Douglas A. Conklin, Appellant, v. New York Central Railroad Company, Respondent.
    
      Negligence — master and servant — railroads — injury to employee engaged in repairing locomotive — when action under Federal Employers’ Liability Act may not be maintained.
    
    
      Conklin v. N. Y. Central R. R. Co., 206 App. Div. 524, affirmed.
    (Argued April 10, 1924;
    decided May 13, 1924.)
    Appeal from a judgment, entered January 23, 1924, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The action was brought under the Federal Employers’ Liability Act. Plaintiff at the time of the accident was employed in repairing one of defendant’s locomotives which had been used to haul both intrastate and interstate trains as exigencies of traffic demanded.' The Appellate Division held that “ The use of an engine indiscriminately for interstate and intrastate commerce does not give character to the engine as an instrumentality of interstate commerce so that a person injured upon that engine when not engaged in interstate commerce may recover damages under the Federal Employers’ Liability Act.”
    
      Thomas J. O’ Neill and Leonard F. Fish for appellant.
    
      William Mann, John F. Brennan and Joseph W. Bryan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  