282 A.D. 741 | N.Y. App. Div. | 1953
On April 13, 1949, decedent, an oiler-chauffeur in the employ of Charles E. Vachris, Inc., was crushed between the back of a eranehouse cab and the back of a truck cab during the operation of a crane by one Salvante, an officer of defendant New York Shovel & Crane Corp. In this action to recover for the personal injuries suffered before death, and for the wrongful death as a result of the accident, said defendant appeals from a judgment, entered on the verdict of a jury in favor of plaintiff, as amended. Amended judgment reversed on the law, with costs, and amended complaint dismissed, with costs. If said judgment were not being reversed, the findings of fact implicit in the verdict would be affirmed. Beginning March 30, 1949, Vachris rented from appellant on a monthly basis a rig (i.e., a revolving crane mounted on a truck) without a crew, which consisted of a crane operator and an oiler-chauffeur. There is no testimony that appellant required Vachris to hire one of its officers to operate the crane. There is testimony that, at A7achris’ request, one of appellant’s officers did operate the crane during the rental period. It is undisputed that from the time Salvante (the crane operator, who was appellant’s treasurer) began to operate the crane on the Vachris job, he was on Vachris’ payroll, and that he was carried on Vachris’ unemployment insurance, social security, and workmen’s compensation rolls. Vachris was required to pay for the fuel and oil and to make major repairs, Salvante making the necessary minor repairs. Decedent, the oiler-chauffeur, had no connection with appellant whatever. In our opinion, this evidence showed that Salvante was an employee of Vachris at the time of the accident and not an employee of appellant. (Burton v. American Bridge Co., 297 N. Y. 993.) While it is true that it was to appellant’s interest that Salvante operate the crane in order to preserve its life, the decisive factor is that appellant agreed merely to rent the crane to Vachris. At most appellant may have supplied Vachris with a servant to work in Vachris’ business. But appellant did not agree to do the operating of the crane for Vachris through the agency of one of appellant’s employees, (See Irwin v. Klein, 271 N. Y. 477, 486.) In