Kinsey v. William Spencer & Son Corp.

255 A.D. 995, 8 N.Y.S.2d 529, 1938 N.Y. App. Div. LEXIS 6205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1938
• Status: Published

Opinion

Action to recover damages for personal injuries. The important question in the case is raised by defendants’ claim that defendant Scotto was the ad hoc employee of a third party. Judgment and order affirmed, with costs. There was ample evidence to warrant a finding by the jury that at the time of the accident defendant Scotto was in the corporate defendant’s employ. Lazansky, P. J., Carswell and Davis, JJ., concur; Close, J., concurs as to the appellant Scotto, but dissents and votes to reverse and to dismiss the complaint as to appellant William Spencer & Son Corporation, with the following memorandum: The evidence clearly establishes that Scotto, in the performance of the work, was under the sole direction of the Huron Stevedoring Company, and that he was paid by that company. In determining liability of a master, the decisive test is not necessarily the payment of wages (Muldoon v. City Fireproofing Co., 134 App. Div. 453; Osborg v. Hoffman, 252 id. 587; Baldwin v. Abraham, 57 id. 67.) A servant in the pay of one person may, for a period of time, be the servant of another in a particular transaction. (Wyllie v. Palmer, 137 N. Y. 248.) Where, as here, a contractor secures an appliance from another, pays the operator, and takes exclusive control of such appliance and the operator, the one who retains control and direction is the one responsible for the negligence of the operator. Adel, J., concurs with Close, J. [165 Misc. 143.]