
    BURLINGAME, Respondent, v. DYKEMAN, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    October 4, 1907.)
    Appeal from Trial Term, Orange County. Action by Earl Burlingame against James H. Dykeman. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals. Judgment and order affirmed. Hugo Hirsh (Ferd. W. Buermeyer and Edwin A. Jones, on the brief), for appellant. Phillip V. Fennelly, for respondent.
   PER CURIAM.

Judgment and order affirmed, with costs,

RICH, J.

(dissenting). This is an appeal from a judgment entered upon the verdict of a jury in favor of plaintiff in an action brought to recover damages for personal injuries. The accident and consequent injury to plaintiff was caused by his backing into an elevator shaft. Defendant was the owner of the building which was occupied by several different tenants. Plaintiff’s employer was a brass goods company occupying the top floor, while defendant’s place of business was in the basement. Plaintiff testified that just prior to the accident he used the elevator to take a truck to the street; that he wheeled the truck off the elevator into the street, took on some freight from an express wagon, and started to pull the truck back into the elevator walking backward; that before reaching the elevator, and when about nine feet from it, he looked back, and the elevator was where he left it; that he then turned into his former position and “kept pulling the truck backwards. * * * When I got to the door of the elevator, I fell in.” While plaintiff was going nine feet, some one without warning moved the elevator and caused the shaft or opening to be left without protection. There was evidence in the case warranting the conclusion that the elevator was moved by a boy in the employ of defendant There is no claim, however, that defendant had any personal knowledge of this act on the part of his emjfloyé; but this does not relieve him from liability for the negligence of the employs, providing he was acting at the time within the scope of his employment. I have examined the record with care, and am unable to find any evidence tending to show that the boy was engaged in defendant’s work at the time. The jury, cannot be permitted to speculate in order to create a basis for a verdict. Bowden v. Mott Iron Works, 113 App. Div. 738, 99 N. Y. Supp. 209. A master is not an insurer against the negligent act of his employs. He can only be charged with such negligence where the act was done while the person was acting within the scope of his employment. There was some evidence from which it might be inferred that the boy was going to the basement and that the defendant occupied that floor. Suppose he was; that of itself proves nothing. The judgment and order should be reversed, and a new trial granted, costs to abide the event.

GAYNOR, J., concurs.  