
    Charles D. Henshaw, App'lt, v. The Pond's Extract Co., Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Master and Servant—Negligence.
    While plaintifi was engaged in oiling a machine which had been stopped for that purpose, it was started up by the engineer and plaintiff's hand was injured by the knives. Held, that as the accident was caused by the action of the engineer, a co-employe, defendant was not liable.
    Appeal from judgment entered upon dismissal of the complaint at the close of plaintiff’s case.
    
      Action for injuries alleged to have been caused by defendant’s negligence.
    Plaintiff was in the employ of the defendant, and while engaged in oiling a machine for cutting witch hazel brush, -which had been stopped for that purpose, the night engineer, who had been substituted for the regular one, started the machine, and plaintiff’s fingers were caught by the revolving knives of the machine, and three fingers were badly cut and mangled, requiring amputation.
    
      Boger M. Sherman, for app’lt;
    
      Billings & Cardozo, for resp’t;.
   Pratt, J.

The defendants’ machine was stopped to be oiled ; and while plaintiff was engaged in oiling it the engineer put it in motion, whereby the plaintiff was injured.

The accident was caused by the action of the engineer, a co-employe, for which the employer is not liable to a fellow servant.

We do not find that negligence of defendant was shown, and must affirm the non-suit.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  