1 Daly 123 | New York Court of Common Pleas | 1861
By the Court.
If it he conceded that the defendants are the owners of the school-house, still, as they had not and could not have, (Laws of 185l, 747, §§ 23, 24, 7,) any tiling to • do with the employment of Tucker, through whose want of skill or negligence the plaintiff was injured, they are not responsible. “ Where,” says Jewett, J., in Pack v. The Mayor, 4 Seld. 222, “ the party employing has the selection of he party employed, it is reasonable that lie who has made ciit/iee of an unskillful or careless person to execute his orders,
.But independent of the question of the responsibility of the defendants, the principle of respondeat superior is not applicable in the case at all. It is well settled in this State that an employer is not liable to one of his agents or servants for the negligence of another of his servants or agents, unless he was himself at fault in the selection of the agent,'or in some other respect. In the prosecution of a general enterprise the employer does not warrant to each person who engages in the enterprise the competency of every agent employed, and cannot be made responsible unless it is shown that he was guilty of a want of care or of negligence in the selection of the person through whose negligence the injury occurred, though it is otherwise where the relation of master and servant, or of principa! and agent does not exit, upon grounds of public policy, Tanant v. Webb, 18 Common Bench, 797. If the contract in this case was for the erection of a wall of insufficient width or thickness, and the injury arose from putting np a wall of that descriptivo', the principal should be answerable for that which was the direct consequence of his own act. Keegan v. The Western R. R. Co. 4 Seld. 173. But it was clearly shown in
The nonsuit, therefore, was properly granted.