Estella W. Bogart, as Administratrix, etc., of Cyrus J. Bogart, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

Estella W. Bogart, as Administratrix, etc., of Cyrus J. Bogart, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Second Department, February 11, 1916. Negligence—death of person employed both as station and express agent — when decedent not engaged in interstate commerce. A station agent employed by an interstate railroad who also was employed by an independent express company having no relation to the railroad company, except that the latter carried its freight and allowed the use of its premises for the receipt and dispatch thereof, who was killed by a railroad train while engaged in removing express packages from the tracks to the station, was not at the time acting in the employ of the railroad, and hence was not engaged in interstate commerce. Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bockland on the 5th day of June, 1915, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 4th day of October, 1915, denying defendant’s motion for a hew trial made upon the minutes. Mortimer B. Patterson, for the appellant. Frank Gomesky, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: The plaintiff’s decedent, Bogart, was killed in this State by contact with defendant’s engine at Blauvelt, a station so inconsiderable that decedent was employed there as its agent at a monthly salary of sixty-two dollars and was also employed as express agent and paid according tó some percentage on the business done. A north-bound train had brought some interstate express, which upon removal from the car was deposited for the moment between the north-bound and south-bound tracks. Bogart was in the act of removing it to the station, when defendant’s engineer, backing on the south-bound track, collided with him. The primary question, and the only one I consider, is whether the decedent was at the time employed by the defendant in interstate commerce. There was no relation between the express company and the defendant, except that the latter carried the former’s freight, and allowed it to occupy its premises for its receipt and dispatch. The decedent when he was injured was handling the freight as the agent and custodian of the express company, and was responsible to it for fidelity in the discharge of the immediate duty, and it alone was obligated to pay him for the service, and alone was liable to respond for his dutiful performance of it. The inquiry comes at once to this point: Was the injured servant doing an act in furtherance of interstate commerce in the course of employment by the defendant ? The decedent was employed by the defendant to do all that falls to the duty of a station agent. He was employed by the express company to do all that falls within the usual employment of an express agent, but to such duties the defendant’s responsibility did not extend. Hence Bogart, as the agent of the express company, was doing what it was the duty of that company to do and what it was not the duty of the defendant to do. Therefore, he was not employed by defendant in interstate commerce. The judgment and order should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.