114 N.Y.S. 38 | N.Y. App. Div. | 1908
The material facts, which are imcontradicted, are as follows : The plaintiff, who was a common laborer, was an employee of J. T. Finn & Co., who were engaged in the erection of a six-story building. The defendant furnished to Finn & Co. a hoisting ele
These facts being found, the liability of the defendant is established within the principles declared in Mills v. Thomas Elevator Co. (54 App. Div. 124; affd., without opinion, 172 N. Y. 660); Moran v. Carlson (95 App. Div. 116); McDonough v. Pelham Hod Elevating Co. (111 id. 585); Sanford v. Standard Oil Co. (118 N. Y. 571); Murray v. Dwight (161 id. 301). It is strenuously contended by counsel for the appellant that the case at bar is to be distinguished from the Mills and Moran cases because of the fact that in the case at bar Finn & Co. had the right to discharge the engineer Bhodes, which element was lacking in the cases referred to. There was sufficient conflict in the evidence of Moran, the agent acting for the defendant in renting the elevator to Finn & Co„ and that of Albrecht, the foreman of the latter, as to whether the engineer preceding Bhodes was sent by defendant, or employed by Finn & Co., and whether the latter was given the right to discharge Bhodes, to justify, the trial court in submitting the question of whether Bhodes was the servant of the defendant or of Finn & Co. to the jury ; and one of the questions submitted to the jury was whether or not Finn & Co. had a right at any time, with or without good cause, to discharge Bhodes and employ another engineer without consulting the elevator company. The jury resolved this
The judgment and order must be affirmed, with costs.
Present — Woodward, Hooker, (xaynor, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.