
    Mamie Hartell, as Administratrix, etc., of Edward Hartell, Deceased, Respondent, v. T. H. Simonson & Son Company, Appellant.
    
      Negligence—master and servant—failure to show that negligent person was defendant's employee.
    
    Appeal from a judgment of the Supreme Court in favor of plaintiff entered in the New York county clerk’s office on the 9th day of February, 1914, upon the verdict of a jury, and also from an order entered on the 14th day of February, 1914, denying a motion for a new trial.
   Scott, J.:

The plaintiff has recovered damages for the death of her intestate, resulting as it is alleged and as the jury has found, from the negligence of one Ryan, the driver of a truck which collided with a wagon in which the deceased was riding. We find but a single q uestion requiring consideration, and that is whether or not the defendant is responsible as master for the negligence of the truck driver. The facts are undisputed. The defendant was engaged in the lumber business, and whenever it had occasion to use a truck for the purpose of delivering lumber it sent word to one Durr, a liveryman, who thereupon sent the truck with horses and a driver. This is what had been done on the day of the fatal accident. The truck itself belonged to defendant, and bore its name upon it. The horses belonged to Durr, and the driver was selected, hired and paid by him, and he alone had power to discharge him. All that defendant could have done, if for any reason it was dissatisfied with a driver furnished by Durr, was to send him back to his employer. For the use of the horses and driver defendant paid Durr an agreed price per hour. The trial justice submitted it to the jury to say in whose employ the driver was. This was error. TJpon the undisputed facts the court should have held, as matter of law, that the driver was the servant of Durr. The case is not distinguishable from Kellogg v. Church Charity Foundation (203 N. Y. 191) and other similar cases, of which there have been many. (See Schmedes v. Deffaa, 153 App. Div. 819.) The judgment and order appealed from must be reversed, and the complaint dismissed, with costs to the defendant in all courts. Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred. Judgment reversed and complaint dismissed, with costs to defendant in all courts. Order to be settled on notice.  