#### Jane Beatty, Adm’rx, Resp’t, *v.*Frederick Thilemann, Jr., App’lt.

*(New York Common Pleas, General Term,*

*Filed February 10, 1890.)*

.Master and servant—Where relation does not exist.

On a requisition of the department of public works defendant furnished the labor and material to take up and relay certain water mains. The workmen were under the immediate direction of an inspector of the department, who directed them as to the time, place and mode of doing the work. Defendant paid the men and was reimbursed by the department. Plaintiff’s intestate was injured by the carelessness of one of the workmen. *Held,*that the relation' of master and servant did not exist between the defendant and such workmen, so as to render him liable for their negligence; that they were servants of the city, which was alone responsible.

Appeal from order denying a new trial and from judgment entered upon a verdict in favor of plaintiff for damages for injuries ■sustained by plaintiff through the negligence of defendant’s servants.

*Elbert*Crandall, for app’lt; *Martin J.*Keogh, for resp’t.

Bischoff, J.

This action was commenced by Robert Beatty, -and resulted in a judgment in his favor. Subsequent to the entry of judgment plaintiff died, and the proceedings were continued by his administratrix. The facts appearing upon the trial are briefly stated as follows: On or about September 15, 1887, the mayor, aldermen and commonalty of the city of New York, through the department of public works, undertook the building of a sewer on West Fifteenth street, between Tenth and Eleventh avenues. In the prosecution of that work it was necessary to take up and relay certain water mains. On September 15, 1887, the commissioner of public works issued a requisition directed to the defendant, as follows:

> Department of Public Works, 81 Chambers St., *\*New York, *September*15, 1887. f *a F.*Thilemann, *Jr.:*

> “ Please furnish and deliver to bureau of chief engineer, chargeable to repairing and renewal of pipe, stop cocks, etc., *necessary*labor, material, and take up and relay water mains on Fifteenth street, between Tenth and Eleventh avenues, rendered necessary for building sewer in said street, to be done under direction and to the satisfaction of the chief engineer of the Groton Aqueduct for and on account of the department of public works, and send bill, with'triplicate, and this order and receipt attached, to room No. 7, this office.

> “ I certify to the necessity of the above work, or supplies, and that the expenditure therefor has been duly authorized and appropriated.

> *499
>       *“ A*certificate of the necessity of the above expenditure was placed on file in this department before the expenditure was incurred.

> “ (Signed) D. Lowber Smith, *'■'■Deputy and Acting*Commissioner, *D. P. W.”*“Page No. 309. (On margin) “ Bequisition, September 14, 1887. “Gr. W. Birdsall, *Chief Engineer.”*

Acting upon this requisition, defendant supplied certain material and furnished the workmen engaged in the work. On October 7,1887, certain of the workmen were engaged in cutting a ■ hole in one of the pipes required for the purposes of the work, using a hammer and chisel for such cutting, and while plaintiff was passing or standing by, a “ chip,” or piece of the pipe, flew off, striking plaintiff’s eye, and destroying its sight. James-Duane, a witness for plaintiff, and an engineer employed in the department of public works, on cross-examination, admitted that it had been the practice of the department of public works for many years to issue requisitions such as the one above set forth,, and that workmen thus furnished were at once taken charge of by an officer of the department called an inspector, who was-placed in charge of the work, at once assumed control of the men, was authorized to discharge such as were found incompetent, and who directed them as to the time, place, manner and mode of doing the work and means to be employed, and that the particular work referred to in the above requisition was in charge of an inspector named James Coleman.

Coleman, also called as a witness for plaintiff, admitted that he was an inspector and authorized by the department of public works to assume charge of the work in question, which he did:;, that he assumed control of the workmen supplied by the defendant, that such workmen were thereafter exclusively under his direction and control, that defendant gave no directions whatsoever in the performance of the work, but that the time, place, mode, manner and means of doing the work were directed by him. (Coleman). Defendant, called as a witness on his own behalf, substantiates Coleman’s testimony. It should also be noted that-Coleman says that immediately prior to the occurrence of the-accident he had directed the men cutting the pipe to desist from, using a “dog chisel,” that he procured a “diamond point” and “ caulking hammer,” and directed that the further cutting should be done with these, and that while using the “ diamond point ” and “caulking hammer ” the plaintiff was injured in the manner stated. It also appears that defendant paid the workmen for their services, that he rendered statements to the department of public works for such services rendered and material supplied, and that he received payment therefor. All of the above facts-were without the slightest contradiction, and when the testimony closed, defendant’s counsel moved that the complaint be dismissed, on the ground that the workmen through whose fault or negligence the accident occurred were the servants of the city and not *500•of the defendant, that the relation of master and servant had not been shown to have existed between the defendant and such workmen, and that therefore no liability of the defendant could be predicated upon the negligence or carelessness of such workmen. This motion was denied and defendant’s counsel duly excepted. The court thereupon charged the jury, assuming such workmen to have been defendant’s servants, and instructing the jury that for the carelessness or negligence of such workmen, if such was found to have existed, the defendant was liable. Defendant’s counsel requested the court to charge that if the city exercised power of control of the work and retained the right to exercise such power during the progress of the work, defendant was its servant and not its contractor, and that in that case the workmen were the servants of the city and not of the defendant; that, although defendant furnished the workmen, yet if the latter •in doing the work were, under the direction and control of the city as to the *mode and means*by which such work was to be accomplished, defendant was not an independent contractor, and was not liable for the acts of such workmen done in pursuance of the directions of the officers of the city. These requests were all refused, and such refusals were duly excepted to by defendant’s counsel.

The jury thereupon found for the plaintiff in $4,000 and defendant moved for a new trial upon the minutes and the grounds .specified in § 999 of the Code of Civil Procedure. This motion was also denied, and from the judgment entered upon the verdict and order denying a new trial defendant has appealed to this ■court.

The learned judge before whom this case was tried erred in his denial of defendant’s motion to dismiss the complaint, and in his refusal to charge as requested. The relation of master and ■servant did not exist between the defendant and the men em■ployed in the construction of the sewer and the taking up and relaying of the water mains. “ If the injured party attempts to recover for his loss against any one other than him who is actually guilty of the wrongful act it can only be on the ground that the relation of principal and agent, or master and servant, existed between the party sued and the party doing the act.” Jewett, J., in *Pack*v Mayor, *etc., 8*H. Y., 225. In the present case, there is no proof of such relation. Defendant supplied certain material and the workmen required in the performance of the work. Among such workmen were the men for whose carelessness he is sought to be held liable. It appears that he paid these men for their services in the first instance and was subsequently reimbursed by the city. There is, however, no evidence that, acting under the requisition addressed to him, he went beyond supplying the inspector with men and material. He nowhere appears to have assumed or undertaken the performance of the work himself. The uncontradicted testimony of two employees of the department of public works shows that the department itself through its inspector was in charge of the work, that it assumed entire control of the men, could terminate their employment by discharge, *501.and directed them not only in the performance of all the details of the work, and the manner and mode of doing it, but also in the use of the very tools employed by the men at the time of the accident complained of. The defendant, on the other hand, from the time he supplied the inspector with the workmen he was called upon to supply, ceased to exercise any further control over them. He does not appear to have participated in the performance of the work and gave no direction whatsoever regarding the means or manner of doing it He could not have retained the men if the inspector chose to exercise his authority to discharge them.

The case of *Kelly*v. *The Mayor, etc.,*11 N. Y., 432, and the cases following that, must be distinguished from the present in that a different state of facts is here presented. In the case last cited the defendant had made a contract to do certain *work*according to certain specifications, under the supervision and direction of one of the city’s officers, and, says Selden, J., “ The object of the clause relied on was not to give to the commissioners of repairs, and the officer named, the right to interfere with the workmen and direct them in detail *how*to proceed, but to enable them to see that every portion of the work was satisfactorily completed. It authorized them to prescribe *rohat*was to be done, but not *how*it was to be done, nor *who*should do it” The very features absent in that case, and upon the absence of which the court dwelt as proof of the fact that the men' employed were not the servants of the city, exist, however, in the present case. The defendant does not appear to have sustained any other relation to the work in question than that of the medium through which the department of public works procured its supply of labor and materials required by it in the performance of work assumed and undertaken by it. The fact that the men employed were paid by defendant for their services might, in the absence of evidence negativing the relation of master and servant, be accepted as some proof of employment, but it is by no means the determining test. If- one person is under the immediate direction and control of another who may terminate such control by discharge, and direct him *what*work to do, when to do it, how to do it, and to designate the means to be employed in doing the work, the relation of master and servant between these persons is complete, and the fact that the services are paid for by another is of no importance. Ho precise rule can be laid down which would be applicable to all cases. Whether or not one person was the servant of another must be determined by the facts of the particular case, after applying thereto the tests above mentioned, and applying these tests to the facts of the present case the conclusion is irresistible that the workmen employed were the servants of the city and not of the defendant, and for the carelessness of such workmen the city, therefore, and not the defendant, must be held answerable.

This view renders the discussion of the appellant’s remaining points unnecessary.

*502The judgment and order appealed from should be reversed, with costs to abide event, and a new trial ordered.

Bookstaver, J., concurs.