
    George Seaver, Appellant, v. Director-General of Railroads, Respondent.
    
      Negligence — master and servant — railroads — interstate commerce — employee of railroad engaged in excavation for purpose of replacement of turntable by new and larger one not engaged in interstate commerce.
    
    
      Seaver v. Payne, 198 App. Div. 423, affirmed.
    (Argued October 20, 1922;
    decided November 21, 1922.)
    Appeal from a judgment entered November 25, 1921, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained through the negligence of the defendant, his employer. The action was under the Federal Employers’ Liability Act. At the time of the accident plaintiff was engaged in excavating around a turntable, which had been used in interstate commerce, for the purpose of enlarging the pit so that the old turntable might be replaced by a new and larger one. The Appellate Division held that plaintiff was not engaged in interstate commerce at the time of the accident.
    
      Charles Irving Oliver, George J. Moore, John M. Stark and Robert W. Upton for appellant.
    
      John M. Cantwell and E. W. Lawrence for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound and McLaughlin, JJ. Dissenting: Crane and Andrews, JJ.  