96 N.Y.S. 253 | N.Y. App. Div. | 1905
The plaintiff has-recovered a j udgment for damages, to his dock, boats and other property occasioned- .by a scow which was cast'adrift in a violent storm and collided with the property. The charge is negligence. The plaintiff first sued the alleged owners of the scow and recovered a. judgment which we reversed. (See Dooley v. Healey, 95 App. Div. 271.) The ground of the reversal was that upon the record as then presented it appeared that the scow, was by' charter in the possession and under the control of the street cleaning department of the city..Of .New York. The decision was on the authority of Anderson v. Boyer (156 N. Y. 93), wherein it was held that where a third' person is injured, by the negligence of the captain of a chartered boat in unloading it the captain is deemed to have been .acting as. the servant of the. charterer and not of. the Owner. The present action is against the members of a firm which as it now appears was at the time of the accident, in the possession and control of the scow under a contract with the city by.which the .defendants agreed to transport the department scows," loaded with street refuse, from the city dumps to Staten Island, to unload them there, and to return them unloaded to the city dumps. The scow in question lvnl been towed by the defendants to Staten Island and unloaded and it went adrift while being unmoored after the unloading in- a severe gale. " The main defense interposed' and litigated' ^t the trial Was that the vessel