88 N.Y.S. 965 | N.Y. App. Div. | 1904
The action is for negligence. The plaintiff complains that a mud scow owned by the defendants was improperly moored and handled in the face of a severe storm, so that it was cast adrift and driven for a mile, and then into collision with the dock, boats and other property of the plaintiff. The judgment against William Healey . must be reversed. His answer is a general denial. Therefore, the plaintiff must prove this Heaíéy’s interest in the scow. All of the evidence of the plaintiff on this subject points to nothing more than that a William Healey, who is a relative of M. H. Healey, is a part owner. But William Healey gives evidence that there is another William Healey, also a relative of M. H. Healey, who is the part owner, and he is corroborated by M. H. Healey, who sold the boat to the present owner. Heither witness is contradicted. It appears that the attorney for the plaintiff was told of the error some time after the service of the papers. The William Healey who was served as ■ a defendant was not an intruder; the court was open to him to show that he was a stranger, as well as to set aside any judgment entered upon his disregard of process intended for another of his full name.
The judgment should be reversed as against both defendants. For it appears that at the time of the casualty the scow was chartered to the street cleaning department of the city of Hew York, so that she was then turned over wholly to the city, under its sole and exclusive dominion and control, and was upon the errand of the department, under its direction and order. The case is controlled by Anderson v. Boyer (156 N. Y. 93).
The judgment should be reversed and a new trial be ordered, costs to abide the event.
All concurred, except Hirschberg, P. J., and Hooker, J. dissenting.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.