
    Edmund Spillane, Respondent, v. The Eastman’s Company of New York, Appellant.
    (City Court of New York, General Term,
    July, 1900.)
    Negligence — When the doctrine of the negligence of fellow-servants does not apply to exonerate the master.
    A carpenter, and a laborer employed to clean up a building in which the carpenter is working, although employed by the same master, are riot engaged in the same line of business, and, therefore, where the carpenter is injured by a shutter thrown by the laborer out of an upper window of the building, the master cannot escape liability to the carpenter under the contention that he and the laborer were fellow-servants.
    Appeal from a judgment of the City Court of the city of New York, entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.
    
      Nadal, Smythe, Carrere & Trafford (L. Sidney Carrere and George O. Redington, of counsel), for appellant.
    Joseph I. Berry, for respondent.
   Conlan, J.

The plaintiff brought this action to recover damages for an injury alleged to have been caused by the defendant’s negligence. It is contended by the defendant that the injuries were inflicted by a fellow-servant of the plaintiff, and that, therefore, a reversal of the judgment should be had.

The plaintiff was a carpenter, and, with one Leonard, who was employed to clean up after the other workmen, was engaged in different parts of a building in course of construction in New York city.

While the plaintiff was performing the work assigned to him, the man, Leonard, threw a shutter from an upper floor of the premises, which struck the plaintiff, and caused the injury for which recovery is sought in this action. The judge presiding at the trial withdrew from the jury the question as to whether the act in question was or was not that of a fellow-servant, and we think that under all the circumstances this was not error. The plaintiff and Leonard, although in the employ of the defendant, were not fellow-servants in the sense that the defendant can escape the consequences of the injury. They were not engaged in the same line of business, and to impute the cause of injury to Leonard, so as to make him individually liable, would be to run counter to a long line of decisions establishing an entirely different rule of law. In the case of McTaggart against the Eastman’s Company, decided by the General Term of this court (27 Misc. Rep. 184), the plaintiff was a hod carrier in the employ of the defendant, and was thrown from a ladder by reason of a collision with a truck driven by one of the defendant’s employees, and this court held that the act complained of was not the act of a fellow-servant, and the conclusion thus reached was affirmed by the Appellate Term in 28 Misc. Rep. 127. We think the two cases are analogous, and for the reasons stated it follows that the judgment and order appealed from must be affirmed, with costs.

Hascall and Schuchman, JJ., concur.

Judgment and order affirmed, with costs.  