Frank J. Kujava, Respondent, v. Walter E. Irving, Appellant

Frank J. Kujava, Respondent, v. Walter E. Irving, Appellant. Second Department, November 22, 1907. Master and servant—Employers’ Liability Act—when act not one of superintendence. The Employers’ Liability Act casts liability on a master for the negligence of his superintendent only when the negligent act is one of superintendence. Hence, it is error to charge that the superintendent of a machine shop who jerked a belt while assisting an employee to place it on a machine, whereby the employee was injured, was acting as the alter ego of the master. Such act is not one of superintendence, but that of a fellow-servant. Appeal by the defendant, Walter E. Irving, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 5th day of November, 1906, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 31st day of October, 1906, denying, the defendant’s motion for a new trial made upon the minutes. Eugene Lamb Richards, Jr. [Rutherford B. Meyer and Frank V. Johnson with him on the brief], for the appellant. David Gerber [Mortimer Fishel with him on the brief], for the respondent. [MAJORITY — Jenks, J. :] Jenks, J. : The plaintiff has recovered a judgment under the Employers’ Liability Act. (Laws of 1902, chap. 600.) His version of the casualty is as follows: He had moved a machine from one-place to another on th'e floor in the defendant’s shop. The machine was worked by a belt attached to shafting. It was necessary to join the belt, which had been cut, so as to adjust' it to the machine in its changed position. He and Hille, the defendant’s superintendent, were at that work. Hille told the plaintiff to get upon a platform four feet high. ■ The belt was then hanging loose over the shafting. . Hille told the plaintiff to hold one end of the belt while he held the other in the work of determining the proper length of the belt preparatory to joining the ends thereof. The shafting had been and was in motion throughout this work. Hille jerked the botto.m of the .belt so as to draw the plaintiffs arm around the shafting, and the plaintiff was thereby seriously injured. The learned court charged the jury, under exception, “ as a matter of law, under those conditions Mr. Hille, concedediy the superintendent * * * was acting as the alter ego of the defendant,” and that Hille’s negligence charged the defendant if he (i. e., Hille) was negligent. I think that the exception was well taken.- . The Employers’ Liability Act casts liability on the employer for the negligence of his superintendent only when the negligent act is "in the course of superintendence. (Lowrey v. Huntington Light & Power Co., 121 App. Div. 245 ; Hope v. Scranton & Lehigh Coal Co., 120 id. 595.) .The act of Hille was not one done in superintendence and'had no relation to lii's-status as superintendent. Hille was engaged at the time in the work, of a fellow-servant, and liis act which caused the casualty was in the detail of'the work of readjusting the belt. (Foster v. International Paper Co., 183 N. Y. 50 ; Lowrey v. Huntington Light & Power Co., supra ; Hope v. Scranton & Lehigh Coal Co., supra ; Meeker v. Remington & Son Co., 53 App. Div. 592, 598 ; Gall v. Beckstein, 173 Ill. 187 ; Scott v. Sweeney, 34 Hun, 292.) The judgment and order are reversed and a new trial is granted, costs to abide the event. Woodward, High and Miller, JJ., concurred; Hirschberg, P. J., not voting. Judgment and order reversed and new trial granted, costs to abide the event.