Vassilia A. Touris and John D. Stephanidis, as Executors, etc., of Sotirios A. Touris, Deceased, Appellants, v. Brewster and Company, Incorporated, Respondent

First Department, March, 1921. Vassilia A. Touris and John D. Stephanidis, as Executors, etc., of Sotirios A. Touris, Deceased, Appellants, v. Brewster and Company, Incorporated, Respondent. Motor vehicles — whether defendant’s employee was acting in scope of employment in leaving automobile is question for jury. Appeal from judgment of the Supreme Court, entered in the office of the clerk of New York county on the 15th day of June, 1920, dismissing complaint at close of ease. [MAJORITY — Per Curiam:] Per Curiam: The judgment appealed from should be reversed and a new trial ordered, with costs to appellants to abide event, upon the ground that the questions as to whether defendant’s employee in charge of the automobile was acting within the scope of his employment at the time he left the automobile at the point of the accident, and whether it was negligently so left, were questions for the jury. Present — Clarke, P. J., Laughlin, Dowling, Smith and Page, JJ.; Clarke, P. J., and Dowling, J., dissenting. [DISSENT — Dowling, J. (dissenting):] Dowling, J. (dissenting): I dissent and vote to affirm, on the gronud that, on the undisputed facts of the ease, the employee had broken the connections between himself and his employer and was not performing any act within the scope of his employment which caused the accident or was responsible for its happening. (Reilly v. Connable, 214 N. Y. 586; O’Brien v. Stern Brothers, 223 id. 290.) Clarke, P. J., concurs. Judgment reversed and new trial ordered, with costs to appellants to abide event.