Veronica Gorney, Respondent, v. The City of New York, Appellant

Veronica Gorney, Respondent, v. The City of New York, Appellant. A municipality hiring a driver, horses and truck from the employer of such driver — it is liable for injury resulting from the driver’s negligence in leaving the horses unattended in the street while reporting for duty to the city. In an action brought against the city of New York to recover damages sustained by the plaintiff in consequence of her premises being flooded by water flowing from a broken Are hydrant, it appeared that the city of New York hired from the firm of Hill & Hays a team of horses, truck and driver to do street cleaning work; that the driver of the truck drove up to the station of the foreman of the street cleaning department, and, leaving his horses and truck unattended in the street, went into the station to report to the foreman for work; that while he was engaged in so doing, the horses ran away and collided with a Are hydrant, breaking it and causing the injuries for which the plaintiff sought to recover. It was a part of the.duty of each driver to report each morning to the foreman for directions as to the details of the work which he was to do. Held, that notwithstanding that the driver was not paid by the city but by the firm of Hill & Hays, he was in the employ of the city while engaged in reporting to the foreman, and that his negligent .conduct in leaving his horses unattended in the street must be regarded as having occurred within the scope of his employment by the city and that the city was responsible for such negligence. Appeal by the defendant, The City of New York, from judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of April, 1904, upon the verdict of a jury for $950, and also from an order entered in said clerk’s office on the 21st day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes. James D. Bell \James T. O'Neill and John J. Delany with him on the brief], for the appellant. Thomas Kelby [James W. Ridgway with him on the brief], for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: The plaintiff has recovered a verdict for damages to her property occasioned by the negligence of a driver in the service of the department oí street cleaning of the city of New York, who allowed his horses, and cart to collide with a fire hydrant, breaking, it down in such a manner as to cause the water therefrom to flood the plaintiff’s premises. TJie evidence.was sufficient.to support- the. verdict, if. the. relation oft thejdriver.to., the. city*,,at;the.timerofvthe;accident,, was: suoli as to render the city liable* forhis- acts... I. entertain no doubt that it was. Assuming, as was testified by tiie.fb.reman.oi'. the. street, cleaning, department.in the. locality, that thadiorsesj. truck,and dr-iven'werediired'.by, the. city from-.the firm of Ilillf & Hays: to dtr> street cleaning work, and? that the* driver received’ his payfram tile firm and not from tile city^ these facts waul'd'not prevent" the city from Being, liable for. tile driver’s negligent acts,, provided, they, oce.ur.nedi in. the course, and, within: the stiopeiofi Lia - em ploymen t„ (Higgins v. W. U. Tel. Co., 156 N. Y. 75.) Indeed, the learned assistant corporation- counsel says in his brief that it may be conceded" nndfer the decision cited' that" “'if the driver.of.the truak.of.'Hill.& Hays.was,at.the. time.of his.-negligent act,, engaged, in, the actual, wank of. the. city; and was-, performing tliatiworkr.undeii' the- directions, and? ini accordance with instr uctions ffom the foreman or-other competent authority-in the Department ,of Street Gleaning, the defendant might be liable.” Its liability is denied,,however,, because*the alleged negligence, occurred while,the éwffl was r.&por.tin-gto the foremanfron duty.. What happened was this.: The driver drovemp to-the foremans station,, and,.leaving his Lomee and truck, unattendecLin the street;, wentv into, the siatiom to. report to the foreman» fan work, as he was required.by the. city. to. dojust.as.he said, to the., foreman,, “ Here’s the horses and truck from Hill & Hays,” the horses ran away and brake; the - hydrant., It has frequently been held to be. negligence tb leave; horses unfastened and unattended in a public street. (Pearl v. Macaulay, 6 App. Div. 70 ; Brand v. Barden's Condensed Milk Co., 89 id. 188.) It being a part of the duty of the driver to report to the-foreman for directions as to the details of the work which he was to do, it seems to me quite clear that he was in the service- of the city while engaged? in so reporting- himself; and- that Iiis- negligent conduct in leaving his horses so* that -they coulif rum away must he regarded-as having occurred within the scope of his employment. It is to be observed .that die was .not .called upon to apply to .the .foreman .to ascertain whether .lie was ,to .be-.employed .or .not. .That'question had .evidently «.been .settled by .the-citjy beforehand with the .firm from which it hired him. He had to r.qpoif .in order to .find .out just what he was to do .on .that day. This is evident from the foreman’s testimony: “ He just came in to report for work; they have to every morning; every driver has to report for work, even the'¡department drivers'; we diave‘to send them'to where: ashesaaro to’be removed.” And previous statements "d'f 'this same "witness showed that he distinctly understood that 'the horses, "truck' and driver were in the defendant’s employ at the time of the accident, "as for example : '“"When this man "brought 'this wagon up There'he •brought it .for .use by the city and delivered 'it there; 'lie deft The wagon there.;to rqpoEt-.to me.; Jib left it .in charge .of the -.city; -he had to'-report there as to its" time; die-did nottstay f'here.amb.dotany work; The horses ran'away'beforedieffiadfhe-chaneeto-go'dfber ibor bring "it to me!” It was .not terror .to refuse .to change .the _ jury that they must render a verdict for the defendant if they found “ that the -drivermnd team and‘truck "belonged To a third «party;” .As Unas «already «been pointed out, "«all might" have 'beendiiredTrom'af bird ’party, Who’paid the driveris wages, and jet the city might'be. liable. The judgment .and order .should he,.affirmed. Hirschberg, P. J., Woodward and Miller, II., concurred: Hooker, J.,.-not"voting. Judgment and order affirmed, with costs.