Hibschbebg, J.:
The evidence establishes the fact that on Christmas eve, in 1898,' the plaintiff, while lawfully upon the public streets in Brooklyn, was seriously injured without fault on her part by the negligence of a driver engaged at the time in delivering to defendants’ customers goods which the defendants had sold and agreed to deliver. No exception was taken by the defendants to the charge of the learned trial justice, every request made by them having been duly charged, and the only question for review is whether he ’should have non-suited the plaintiff on defendants’ motion. The evidence discloses no person or persons by name or other identity responsible for the driver’s negligence other than the defendants, and the plaintiff is, therefore, without remedy in the redress of her misfortune if their contention be .adopted by the court. ■ In my opinion only the clearest requirements of law and justice will justify such a disposition of the case.
The defendants were proprietors of a large department, store, in Brooklyn, and were the owners of seventy vans which they used throughout the year in delivering their goods to purchasers. This number was insufficient for the holiday trade, and they accordingly hired forty-one additional vans for the two weeks immediately preceding Christmas day. Of this additional number thirty were hired under written contract, and included the use of a driver and helper in each instance, the form of the written contract being as follows:
“ This agreement entered into between Abraham & Straus and P. Belford and Son:
“ Abraham & Straus agree to engage Six Two-Horse vans for a period commencing December 12th, 1898, and terminating December 24th, 1898, at the rate of $8.00 per day per van.
[69] “ In consideration of above, P. Belford and Son agrees to furnish Abraham & Straus with Six Two-Horse vans, driver and helper, to be responsible for the proper collection and prompt return of all C. O. D. monies, and for the safe delivery of all goods entrusted to their charge.
P. BELFORD & SON.
“ Nov. 10/98.”
All the hired vans were engaged or obtained from nine persons or firms, and five of these contracts were produced upon the trial, the other four written contracts having been lost or misplaced. The remaining eleven vans were hired without any written contracts. As to these eleven, there was no direct or explicit evidence as to the terms of the hiring, or as to whether or not they included the services of drivers and helpers. It might be assumed that the eleven were hired under the same terms and conditions as were the thirty, in order to support a judgment, but it would hardly seem proper to adopt such a presumption for the purposes of a reversal. The burden of establishing the defense relied on in this case rests with the defendants. (Seaman v. Koehler, 122 N. Y. 646.)
The evidence establishes the fact that the plaintiff received her injuries from one of the forty-one hired vqns. It bore the defendants’ firm name painted in black letters on a strip of white muslin, about two feet wide and running the length of the truck, while the vans owned by the defendants were covered with black oilcloth, lettered in gold. The driver drove away upon the happening of the accident, and it was accordingly impossible for either party to prove which of the forty-one vans did the mischief, from whom it was hired or whether it was hired orally or under written contract. For the same reason the case is void of proof as to the occupation of the owner or owners of the van or truck in question and as to the general occupation of the driver, whether he was one of- the defendants’ servants, whether he was a servant in the general employment of such owner or owners, or whether he was specially hired by such owner or owners to drive for these two weeks in the business of the defendants’ deliveries.
The plaintiff proved that the wagon driven at the time of the accident bore the defendants’ firm name on a muslin or canvas strip along the sides, and was precisely like others which on that day were loaded at their store, and it was undisputed that it was loaded with their goods, en route for delivery to their customers'. This certainly [70] .made out a prima facie case, and it would have heen error had the learned trial justice granted the nonsuit applied for at the close of the plaintiff’s case. (Seaman v. Koehler, supra; Hodgson v. Conklin, 50 App. Div. 604.) The defendants produced their delivery superintendent as a witness on • their behalf, and he testified, on direct examination, to the facts hereinbefore detailed in reference to the number of vans owned and the number hired by them, with their distinguishing marks, and further testified in answer to a direct question that the vans with a muslin or canvas strip, such as the plaintiff had described, were not “in the possession of or under the ownership or control of the defendant.” .Had the evidence rested here, it would still seem that a nonsuit would be improper, for the superintendent’s relation to the defendants was such as to present the question of his credibility for consideration. (Dean v. Van Nostrand, 23 Wkly. Dig. 97, and Lamb v. Prudential Ins. Co., 22 App. Div. 552, 556.) But the superintendent was cross-examined as to the exercise of control over the hired vans by the defendants,.and his statement that, the defendants had .no control over such vans was considerably shaken. He had testified that he made the contracts for the thirty vans which were obtained under written contract, and that the strips bearing defendants’ name were prepared, furnished and owned by them. He was then asked and answered as follows : “ Q. Why did you furnish these strips with Abraham & Straus on for these wagons ? A. For the purpose of advertisement. Q. For the purpose of advertising that they were your wagons? * * * A. Yes, I guess so. Q. What? A. Yes, sir. Q. Then you regarded them as your wagons for the purpose of these deliveries, didn’t you ? * * * A. Yes, sir. * * * Q. Don’t you require the person who received the goods to give some evidence that they got them? A. In'fragile articles, yes, sir. Q. Yon sent fragile articles out by these men? A. Yes, sir. We have a form of receipt for that. ■ The Court : That is what he is asking about. Did you give any of these drivers any book of any kind to take with them for use? The Witness: We gave them a receipt, not a book. It is a printed slip, specifying, for instance, such as dinner sets, so many hundred pieces. Q. And that they get them in good order? A. Yes, sir. Q. You-furnished these men with these receipts - to get for you,, did you? A. Yes, sir. Q. Did [71] yon furnish these to each driver ? A. 'Yes, sir. * * By the ■Court: Q. What duty lias the driver about them when he comes to deliver that particular package ? A. He takes this receipt, delivers his goods and gets his receipt signed. Q. And brings it back to you ? A. Brings it back to the house. By Mr. Patterson: Q. That he was doing for you, wasn’t he? A. For Abraham & Straus — yes, sir. Q. He was to do it for Abraham & Straus, and he was to do it under their direction, wasn’t he? A. Yes, sir. Q. He was delivering all these goods for Abraham & Straus, wasn’t he — all the goods he had in the wagon ? A. Yes, sir. Q. And Abraham ■& Straus were having that man do their work, weren’t they— each of these drivers on a hired wagon? * * A. Yes, sir. Q. They were doing the work entirely under your direction, weren’t they? A. tinder my direction? Q. Yes, under the direction of Abraham & Straus? A. Well, we did not look at it in that light; no, sir. Q. You do not mean to say that they did not have to go where you sent them ? A. So much that we gave them the route to do; yes, sir. .Q. They had to go and do that route? A. Yes, sir. Q. Then they were doing that under your direction, weren’t they? A. Yes, sir. Q. The delivery of goods was under your ■direction? A. Yes, sir. * * * Q. Did you ever call the attention of these drivers of these hired vans to the necessity of handling these fragile packages with great care ? A. Individuals I have. Q. Individuals, yes. Have you? A. Yes, sir. Q. Wherever you saw these men were not handling the property right you called their attention to it, didn’t you? A. Yes. Q. And spoke to them sharply, too, didn’t you? A. Yes. Q. You had authority over them, didn’t you? A. Well, to that extent, yes, sir. Q. You had authority to direct them how they should handle your goods, did you not? A. I assumed it. Q. You had it, didn't you? A. Yes, I suppose I had it. Q. You believed you had it? A. Yes, sir. * * * By the Court: Q. Did you have some other man in your department under you helping you about your general work in connection with the delivery? A. Yes, sir. ■ Q. About how many in number ? A. Entirely, do you mean ? Q. Yes, at this time? A. I don’t know the exact figures, but about three hundred or four hundred people. By' Mr. Patterson: Q. I had particular reference to this department of telling a man to take [72] a particular bin and sending 'off the truck? A: We had one man in charge of the driveway. Q. Who is that ? A. His name is Sea^ grift. Q. Is he here?. A. No, sir, he is not here. Q. When the truck came in, after delivering its load, did you ever .send the driver out again.? A. Tes, sir. Q. Ton sent the driver out again' if the owner of the truck was not there? A. Tes, sir. Q. Ton would assume full control over the truck if the owner was not there, wouldn’t you? A. Tes, sir. Q. And full control over the man?' A. Tes, sir, so far as sending him anywhere. Q. So far as telling him where to go ? A. Tes, sir. ,Q. Where to go first and where to go last? A. Tes, sir. * * * The Court: Q. Who controlled whether the wagon was sufficiently loaded or not?' Who looked after that ? (The witness): One of. my assistants; this man Seagrift. . We would judge nearly what was a load. Q. If he didn’t think the man had load enough, he could put more on him, could he? A. Tes, sir, if such was the case. * * * Q. T.ou gave precisely the same kind of directions to these men on the hired vans as you did to your own men, didn’t yon? A. No, sir, I don’t think so. Q. What was the difference in the. directions you' gave to them ? Á. Our own men, and what I mean by our own men, the men on our regular pay roll, they are on a regular route, and they come there and take their route. The Court: They knew their business and did not need so much instruction ? . The Witness : That is-the idea. Q. Then you gave more instructions to the. men on th.e hired vans than you did to your own?- A. Tes, sir. We gave no instructions outside of telling them, to take that bin. Q. Ton told them to take that bin ? A. That route. . Q. Then the delivery sheet contained the directions of where they were to go ? A. It was a summary of all the goods they had in the wagon. . Q. What packages they had and where they should be delivered ? A. Tes, sir.”
The superintendent was the only witness called by the defendants who gave any evidence on the question under consideration, and these citations, from his testimony indicate that the defendants did exercise some control oyer the delivery of their goods by the hired wagons. -It seems to me to justify the conclusion that the unknown owner of the truck in 'question could not be said as matter of law to have contracted independently for the. delivery of the defend[73] ants’ goods, even if the truck was hired with driver and helper under one of the written contracts. If it was one of the eleven trucks not so hired, I fail to see how under any view the court could refrain from submitting to the jury the question of who in fact was in charge of the truck at the time of the accident. Certainly no authority can be found in this State to support the proposition that a merchant sued for injuries inflicted upon the street by one driving a wagon bearing his name and loaded with his goods, can have the case dismissed on his simple affirmation that he had hired the driver and outfit from some unnamed and undisclosed stranger, yet the adoption of this proposition is a necessity to the reversal of the plaintiff’s judgment.
Even on the forced assumption that the truck in question was one of those hired by written contract, the law would seem well settled in this State to the effect that a question is presented for the consideration of the jury. They would be required to decide under the terms of the contract, viewed in the light of. its purpose and the mode actually adopted in its execution and performance, whether the contractor actually made the deliveries, or whether his contract was limited to furnishing the defendants with the means to enable the latter to do so. In the one view the driver might be regarded as working at the time in the business of the contractor, and in the other view as working in the business of the defendants. The control over the driver, depending as a legal right upon the determination of this question, would be decisive of the case. The court submitted this question to the jury under instructions which were surely as favorable as the defendants were entitled to. At defendants’ request the court not only charged the jury that in order to justify a recovery they must find that the “ driver of this hired vehicle was a servant of the defendants,” and that “they must have control over him at the time of the accident itself,” but further charged “ that if the jury believe that the only authority or control exercised by the defendants over these hired vehicle's was in relation to the collection of receipts for the delivery of fragile goods, and the naming of the ‘ route ’ or bin from which the goods were to bé taken and the giving to the driver of a delivery sheet, then the defendants did not have such control or authority over the [74] driver thereof as would make the defendants responsible for any negligence- on the part of the driver of one of said hired trucks at the time in question ; ” and, also, “ that if the jury believe that the control of the defendants over the drivers of these hired vehicles ceased after the vans left the store of the defendants for any given trip, then their verdict must be for the defendants.”
The recent decisions in this State seem to be uniform in the assertion that the. true test as to whether the relation of master and servant exists is not necessarily the payment of wages, but is ■whether at the time of the injury complained of the alleged servant is engaged in the business of the alleged master, and subject to his direction and control. It is not so much the actual exercise of control which is regarded, as the right to exercise such control. .
In Wood’s Master and Servant (§ 281) it is said : “ In order to be held chargeable for the acts of another, the person sought to be charged must at least have the right to direct such person’s conduct and to prescribe the mode and manner of doing the workand the person for whose acts he is sought to be charged must, at the time when the act complained of was done, not only have been acting for him, but also must have been authorized by him, either -expressly ■ -or impliedly, to do.the act.”
In Laugher. v. Pointer (5 B. & C. 547), Littledale,. J:, laid down the rule that he is master who has the right of control over the person inflicting the injury at the time it was inflicted.
In Linnehan v. Rollins (137 Mass. 125), among the instructions which the court sanctioned and approved was one to the effect that “ the absolute test is not the exercise of power of control, but the right to exercise power of control.”
In Patten v. Rea (40 Eng. Law & Eq. 329) the. court held that in an action for damages done by the negligent driving of the defendant’s servant, the proper question to leave to the jury is whether at the time of the act comflavned of the servant was driving, upon the master’s lousiness and with his authority. In that case the general manager of the defendant, a horse dealer, had a horse and gig. of his ' own, which he used for the defendant’s business as well as his own, and in return the horse Was kept at the defendant’s expense, and on one occasion the manager, on putting the horse into the gig, told [75] the defendant he was going to S, to collect a debt for him, and afterward to see his own doctor, and before he got to S. he ran his gig against the plaintiff’s horse and killed it. It was held that, although it did not appear that the defendant had expressly requested the servant to use the horse and gig on this particular occasion, yet there was sufficient evidence to charge him with liability for his act, because, at the time, he was on the defendant’s business with his knowledge and assent.
In Cunningham v. Syracuse Improvement Co. (20 App. Div. 171), the plaintiff, a teamster in the general employment of A., was directed by A. to perform such work as might be required of him by B., and in the course of the work was injured by the negligence ■of a servant in the general employment of B. The court said (p. 176): “ The plaintiff, at the time he received his injury, was engaged in performing services for the defendant, who had the right, and did actually assume, to control his conduct. For any misconduct or inability to perform the service required of him, the defendant could undoubtedly have discharged him and returned him .to his general employer. The defendant was, therefore, at that time the plaintiff’s master, and, as he was also the master of the person whose negligence caused the injury, it follows that this person and the plaintiff were co-servants in the same common employment, and that no action lies against the defendant for the injury sustained by the plaintiff. (Roselle v. Rose, 3 App. Div. 132.) ”
In Wyllie v. Palmer (137 N. Y. 248, 257) Judge O’Brien said: “ The fact that the party, to whose wrongful or negligent act an injury may be traced, was at the time in the general employment and pay of another person, does not necessarily make the latter the master and responsible for his acts. The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct. The rule on this subject is well stated by a learned author on the law of negligence, as follows: * He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work, but in all its details. The payment of an employee by the day, or the control and supervision of the work by the employer, though important considerations, are not in themselves decisive of the fact that the two are [76] master and servant. * * * Servants who are employed and paid by. one person, may, nevertheless, be act hoc . the servants of another .in a particular transaction, and that too where their-general employer is interested in the work. They may, without consulting their master, but in good faith, assist a person independently employed to do something which shall benefit their master, but with which neither he nor they, have any right to interfere, and in which they act entirely under the control of such other person.- In none of these cases is the nominal master responsible to strangers for their acts or omissions.’ (Sher. & Redf. on Neg. [4th ed.] p. 269.)” In tkat case tlie plaintiffs were injured during a display of fireworks in charge of a citizens’ committee. The fireworks were sold and delivered by the defendants, who also sent a man and a boy to set them off, and the accident occurred through the negligence of the boy. Held, that, as the display was in charge of the committee, the boy was acting at the time in their service and not as the servant of the defendants.
In McInerney v. Delaware & Hudson Canal Co. (151 N. Y. 411) it was held that the defendant’s engine crew when running their engine upon a switch track upon the premises of a private shipper of freight, at the request of the shipper, to couple and move cars for him on his track, under his orders, for shipment on defendant’s road, are in law his servants. - ■
In Higgins v. Western Union Telegraph Co. (156 N. Y. 75, 78) Judge O’Brien said: “ The general rule is that a party injured by the negligence of another must seek his remedy against the person • who caused the injury, and that such person alone is liable. The case of master and servant is an exception to the rule, and the negligence of the. servant, while acting within the scope of his employment, is imputable to the master: (Engel v. Eureka Club, 137 N. Y. 100.) But the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between.the wrongdoer and the person sought to be charged'for the result of the wrong at the time and in respect to the very transaction out of which the injury arose.. The fact that the party to whose wrongful . or negligent act an injury may be traced, was at the time in the general enployment and pay of another person, does not necessarily make the latter the master and responsible for his acts. The master [77] is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct. Servants who are employed and paid by one person may, nevertheless, be ad hoc thé servants of another in a particular transaction, and that, too, when their general employer is interested in the work. (Wyllie v. Palmer, 137 N. Y. 248.) ”
And at page 79 : “ I am unable to distinguish this case in principle from the cases in this court already cited; and the best considered cases in other jurisdictions are to the same effect. (Murray v. Currie, L. R. [6 Com. Pleas] 26 ; Rourke v. White Moss Colliery Co., L. R. [2 Com. Pleas Div.] 205.) In the latter case Lord Cockburn stated the rule in these words : ‘ But when one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must he dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.’
“ The true test in such cases is to ascertain who directs the movements of the person committing the injury.”
There is nothing in the case of Murray v. Dwight (161 N. Y. 301) which in any degree conflicts with the principle established and affirmed in these cases. In that case the driver was pursuing what the court called “ an independent and quasi public employment in the nature of a common carrier; ”. he was a truckman ; it was he, the driver, who was injured; he was injured by the negligence of one of his customer’s servants before he actually commenced the work for which he had been engaged, and the decision rests upon the proposition that a person engaged in the exercise of a recognized and independent public calling or occupation is not to be regarded as a co-servant with the servants of his patrons. Judge O’Brien said (p. 305): “A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling. The truckman who transports the traveler’s baggage or the merchant’s goods to the railroad station, though hired and paid for the service by the owner of the baggage or the goods, is not the servant of the person who thus employs him. He is exercising an independent and quasi public employment in the nature of a common carrier, and his customers, whether few or many, are not generally responsible for his negligent or wrongful acts, as they [78] may be. for those of other persons in their regular employment as servants. A contract, whether express or implied., under which such special jobs are done or such special services rendered, is not that of master and servant within-the law of negligence. (Jackson A. Iron Works v. Hurlbut, 158 N. Y. 34; 1 Parsons on Contracts, 101-109.)” In that case Judge Gray, who differed from his associates only in the application of the legal principles to the facts, said of the recent cases on the subject hereinbefore--referred to (p. 310): “ If I read these cases right, they sustain the doctrine that one who-is the servant of the general master may, if employed elsewhere temporarily, ad hoc, become the servant of the special master, and it is of no consequence whether he is loaned for the purpose, or whether he is hired, not directly, but through his general master. If the particular employment subjects him to the directions and • orders of -another than his "general master, he ceases to be the latter’s servant for -the time.”
The difference between Judge Gray and his associates arose from the fact that he refused -to recognize as controlling the distinction in the case of one who is pursuing a known business or occupation, and who, although subject to the orders and directions of his patrons or customers, is not subject to them in the sense that a servant is subject to the orders and directions of his master. Murray was never transferred from one master to another, but was all the time ■ working in the business of his general master, viz., the trucking busi-, ness. His case is analogous to that of the driver, where a horse and driver are hired from a livery stable for a special service, and which service the driver renders in the bi/oery business, and by virtue alone of his general employment. In-rendering such service to a customer of the stable he is doing the very thing for which he is hired generally by his master, and the case is not presented of a servant who is hired to do one thing for a general master, but who is temporarily transferred to do another thing for a special master..
Applying the principles of these cases to .the one under consideration, it is apparent that the learned trial justice but followed the. law in submitting the controversy to the jury.. The decision of the . case necessarily rests upon the question,' whose servant was the driver at-the time of the accident, and we. must affirm the judgment unless we .can say as matter of law that lie was not the servant of [79] the defendants. Prima facie he was the servant of Abraham & Straus. He was certainly engaged at the time in delivering their goods in a wagon loaded at their store and advertising their name to the general public. Notwithstanding these facts the driver might have been delivering these goods for Abraham & Straus in the pursuit of some other independent occupation than theirs, such as that of truckman, liveryman, expressman, or forwarder; but the evidence fails to disclose that' such was the case. The test to determine whose servant he was is to decide in whose business was he driving. If not driving in the business carried on by the defendants, then in what business was he driving ? For all that appears he may never have drawn a rein until he did so on the occasion in question. It is true that if-he were “ funrshed ” to Abraham & Straus under one of the written contracts, it might be plausibly argued that his unknown master had taken a contract to deliver their goods for them, but such argument would surely not be so conclusive as to make the decision of the question one of law and not of fact. And where the question as to the existence of the relation of master and servant is a mixed one of law and fact, it must be left to the jury. (Brophy v. Bartlett, 108 N. Y. 632, revg. 37 Hun, 642. See memorandum filed by Judge Finch, 13 N. Y. St. Repr. 490.) The determination must still be reached in the light of the intent of the parties, and the beneficial end to be accomplished by the contract; whether, in other words, the contractor was to make the deliveries or whether his contract was fullfilled when he “ furnished ” the defendants with the means of making them and guaranteed the fidelity of the individuals whom he “ furnished."” I concur in the view adopted by the jury. The proprietors of a large department house, with hundreds, perhaps thousands, of employees, and seventy vans for the carrying out of their contracts of sale and delivery, require forty-one more vans Jo meet the increased holiday trade. They pick them up, with drivers and helpers, wherever they can, for the two weeks of rush. In most instances they require written guaranties of the care and fidelity of such temporary employees, but in other instances exact no such condition. They put their own names on the vans so hired, and use them so far as can be seen precisely like the ones they own. The essence of the contract requires that they should be allowed to do [80] so. The practical object sought to be accomplished requires that they should be allowed to direct the drivers and helpers how to load, what to load, when to go, where to go, by what routes, and with what reasonable expedition. The defendants’ superintendent frankly admits that the actual practice accorded with these require- ■ ments; and the only difference observable is that the temporary sérvants naturally required more instruction than the regular hands. Indeed, it would be difficult to imagine the defendants conducting their holiday trade with nine outside bosses managing the delivery of their goods. To say that under such circumstances the defendants would be responsible for the negligence on the public streets of their regular servants, but not for that of those thus temporarily . hired, is so repugnant to reason and justice that it would be little . short of amazing if it had yet found place in the adjudications of the State. It certainly finds no sanction in any authoritative case cited by the appellants’ counsel, and those whiclr make the payment of wages the sole test have long since been overruled:
The judgment and order should be affirmed, with costs.
All concurred, except Goodrich, P. J., who reads for reversal, and Sewell, J., taking no part.