
    Second Department,
    October, 1907.
    Earl Burlingame, Respondent, v. James H. Dykeman, Appellant.
    
      Negligence — landlord and tenant —fall of employee of tenant down elevator shaft — liability of landlord for act of his servant in moving elevator — speculative verdict. ■
    
   Appeal by the defendant from a judgment of the Supreme. Court, entered in the office of the clerk of the county of Orange on the 21st day of April, 1906; also from an order denying defendant’^ motion for a new trial,' entered in the same office on the 5th day of May, 1906.

Judgment and order affirmed, with costs. No opinion. Hirschberg, P. J., Hooker and Miller, JJ., concurred; Rich, J., read for reversal, with whom Gay nor, J., concurred. • -

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 manufacturing 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; 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 employee, but this does not relieve Mm from liability for the negligence of the employee, 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.) A master is not an insurer against the negligent act of Ms employee. 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 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., concurred.  