
    Albert Miller, Respondent, v. North Hudson Contracting Company, Appellant.
    
      Miller v. North Hudson Contracting Co., 166 App. Div. 348, affirmed.
    (Argued November 20, 1917;
    decided December 4, 1917.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 8, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. This action was brought by plaintiff under the Employers’ Liability Act against the defendant to recover damages for personal injuries sustained by the plaintiff while he claimed that he was in defendant’s employ. It was alleged in the complaint that defendant, a corporation, was engaged in grading and paving a street; that plaintiff was in defendant’s employ, and that the accident to plaintiff happened while he was engaged with a wagon and horses in unloading dirt on said street and that said wagon and horses attached thereto fell into a deep hole, and that the plaintiff was thereby dragged and thrown under said wagon, suffering the injuries complained of. Negligence was predicated on defendant’s failure to warn the plaintiff of the danger and to inform Mm of its existence, and to properly superintend the work, to provide him with a safe place to” work, provide a competent superintendent and in directing the plaintiff to back said wagon into said hole. Defendant’s answer admitted the incorporation of the defendant, and that it was on the day in question engaged in grading and paving a certain street in the city of Albany, and denied each and every other allegation of the complaint, thereby raising an issue as to plamtiff’s employment and the negligence complained of. Contributory negligence was also set up as a further defense. It appeared that the defendant hired the team of horses wMch the plaintiff was driving of one Gates, of Rensselaer, who, under the terms of the hiring, furnished the driver for the team, and the plaintiff was the driver furnished.
    
      Neile F. Towner for appellant.
    
      Rollin B. Sanford for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chase, Cuddeback, Hogan and Pound, JJ. Dissenting on the ground that there was no actionable negligence on part of defendant proved: Hiscock, Ch. J., McLaughlin and Andrews, JJ.  