#### John Henry, Respondent, *v.*Stanley Hod Elevator Company, Appellant.

Second Department,

December 30, 1908.

Negligence—injury by hoisting elevator — agreement to install a,nd operate elevator for building contractor — negligence of engineer resulting in injury to contractor’s employee — fellow-servant.

An elevating company which contracts with a construction company to install a hoisting elevator and operate the same by its own engineer is liable to an employee of the construction company for injuries caused by the negligence of the engineer operating the elevator.

This is' true although it was agreed that the construction company, if dissatisfied with the engineer furnished, could “remove him and get another” where the engineer actually furnished was employed and paid by the elevating company, for this agreement did not give the construction company a right to employ any engineer it wished, but merely entitled it to require the elevating company to furnish a new engineer in case the one supplied proved unsatisfactory.

The liability of the elevating company for injuries so caused is not affected by the fact that the engineer furnished raised and lowered the car on signals received from the construction company’s employees, where the negligence consisted in raising the car without any signal.

Under the circumstances the engineer and the employees of the construction company were not fellow-servants.

Appeal by the defendant, the Stanley Hod Elevator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 29th day of February, 1908, upon the verdict of a jury for $11,500, and also from an order entered in said clerk’s office on the 20th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*Tallmadge W.*Foster, for the appellant.

*Isaac M. Kapper [Thomas E. Pearsall*with him on the brief], for the respondent.

Rich, J.:

The material facts, which are imcontradicted, are as follows : The plaintiff, who was a common laborer, was an employee of J. T. Finn & Co., who were engaged in the erection of a six-story building. The defendant furnished to Finn *&*Co. a hoisting ele*614vator with all of its appliances, including fuel, an engine and an engineer to operate it when in use. The engiue was to be located at such point as the forenaan of Finn & Go. designated, and the elevator used for carrying the material owned by the company to the different floors of the building for use. At the time of making the contract the foreman of Finn & Go. *“*wanted to know, in placing the engineer, if the engineer was not satisfactory could he remove him and get another one,” and was informed that he could. The elevator was rigged at first for one story, and changed by the defendant to carry to the additional higher stories as the building progressed. After it was set up the defendant sent an engineer to operate it, who served two or three weeks, when work was stopped for a time, and upon its resumption one Ellis was placed in charge of the engine, and continued until the day of the accident, when he was taken away, and the defendant placed one Ehodes in charge. Each of these engineers had been in the employ of the defendant for some time prior to the time when the elevator was rented to Finn & Co., and remained in its employ, and they were used in running the defendant’s elevators that were rented to different parties for hoisting purposes. Ehodes was hired and paid by the defendant. He reported for work to the foreman of Finn & Go. on the morning of Juno 8,1905, and was directed to “ Start at ten o’clock,” to “be all ready” at that hour. The movement of the elevator was regulated by strokes upon an eight-inch gong, fastened on the girder at the elevator shaft on the first floor of the building, given by pulling a rope attached to it, from either floor of the building. The elevator carried two wheelbarrows side by side. In lo_ading, the employee of Finn & Go., after wheeling the second barrow on, would strike one stroke on the gong, which was a signal to the engineer stationed forty-five feet away that the elevator was to go up. On being unloaded the two empty barrows were wheeled on, and the employee, after wheeling on the last barrow, caused two strokes to be sounded on the gong, which was a signal to the engineer to lower the elevator. The latter had no means of knowing where the elevator was, or in which direction it was to be moved, except by the gong signals. On June 8,1905, the building had progressed to the fifth floor, on which work was being done by the plaintiff and other workmen. Ehodes started the elevator as *615directed at ten o’clock, and continued to operate it during the day. In the early afternoon two loaded barrows were sent to the top floor, where they were removed, and the plaintiff started to wheel an empty barrow on the elevator. As the wheel of the barrow struck the floor of the elevator, the engineer, without signal or warning, lowered the elevator a story and a half, and immediately sent it quickly back to the top floor. While there is a conflict in the evidence as to whether a signal was given, the jury have resolved the question in favor of the plaintiff’s contention, and we must adopt their conclusion, it being based on preponderating evidence. When the elevator was lowered it left the barrow in the opening, the plaintiff hanging on to the handles to prevent its falling, and endeavoring to pull it back out of the shaft or opening. On its return the elevator struck the barrow, raising and throwing it against the body of the plaintiff, throwing him from the place where he was working to the ground below, and inflicting serious injury upon him.

These facts being found, the liability of the defendant is established within the principles declared in *Mills*v. *Thomas Elevator Co.*(54 App. Div. 124; affd., without opinion, 172 N. Y. 660); *Moran*v. *Carlson*(95 App. Div. 116); *McDonough*v. *Pelham Hod Elevating Co.*(111 id. 585); *Sanford*v. *Standard Oil Co.*(118 N. Y. 571); *Murray*v. *Dwight*(161 id. 301). It is strenuously contended by counsel for the appellant that the case at bar is to be distinguished from the *Mills*and *Moran*cases because of the fact that in the case at bar Finn *&*Co. had the right to discharge the engineer Bhodes, which element was lacking in the cases referred to. There was sufficient conflict in the evidence of Moran, the agent acting for the defendant in renting the elevator to Finn *&*Co„ and that of Albrecht, the foreman of the latter, as to whether the engineer preceding Bhodes was sent by defendant, or employed by Finn *&*Co., and whether the latter was given the right to discharge Bhodes, to justify, the trial court in submitting the question of whether Bhodes was the servant of the defendant or of Finn & Co. to the jury ; and one of the questions submitted to the jury was whether or not Finn & Co. had a right at any time, with or without good cause, to discharge Bhodes and employ another engineer without consulting the elevator company. The jury resolved this *616question in the negative, and we would hardly be justified in considering as an existent fact that which the jury on sufficient evidence found did not exist. But were this otherwise, and the question properly before us for consideration, we do not think the evidence warrants the conclusion we are asked to reach. It is apparent that the defendant intended to retain charge of its elevator and the machinery connected with its operation, and operate it by its employees. The language used, as testified to by Horan, the man who, representing the defendant, gave the only authority Finn *&*Co. specifically had, that if the engineer sent was not satisfactory the latter could *“*remove him and get another one,” is in effect that the foreman if not satisfied could dispense with the services of the engineer sent, and get another one from the defendant, and not, independent of the wishes of the latter, employ whom he saw fit. Finn & Co. or its foreman could not discharge the engineer sent at will. The most it could do, if he was not satisfactory, was to dispense with his services on that particular job and require the defendant to send another of its engineers to take his place, and the engineer whose services were thus dispensed with by Finn *&*Co. yet remained in the employ of defendant. The defendant under its contract was not obligated to send any particular engineer or permit any engineer to remain for any specified length of time. It could send a different engineer every day and discharge any one sent at any time, irrespective of the wishes of Finn & Co., so that it had absolute control of the engineer at all times; he simply took direction from the employees of the latter as to when he should raise or lower the elevator when in use. The defendant did not relinquish control of either its engineer or property he was operating. The fact that he reported for work to the foreman and received direction from the employees of Finn & Co. when to raise and lower the elevator did not operate to change his relation to the defendant as its servant. *(Johnson*v. *Netherlands American Steam Navigation Co.,*132 N. Y. 576.) The learned counsel for the appellant overlooks the distinction between the cases cited to sustain his contention of non-liability, and the case at bar, which is pointed out in *Breslin*v. *Sparks*(97 App. Div. 69), namely, that in this case the plaintiff and the engineer were ' not engaged in the same employment; the latter was employed and *617paid by the defendant to operate the elevator, and was acting within the scope of his employment when the accident occurred; he had no connection with the work for which the. plaintiff was employed or which he was doing and was not, therefore, a fellow-servant.

The judgment and order must be affirmed, with costs.

Present — Woodward, Hooker, (xaynor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.