#### The American Colortype Company, Respondent, *v.*James Reilly’s Sons’ Company, Appellant.

(Supreme Court, Appellate Term,

June, 1905.)

Negligence — Installation of motor — Damages to printing press.

Where, after defendant had' installed a motor, supplied by plaintiff, and connected it with a certain press in plaintiff’s printing room-, defendant’s electrician, who was not a professional pressman, started the press and when he saw everything running all right gradually increased the speed, notch by notch, until at full speed something broke, the plaintiff' is entitled to judgment for damages to his press.

Scott, P. J., dissented.

Appeal by the defendant from a judgment rendered in favor of plaintiff in the City Court of the city of New York, after a trial before the court without a jury.

H. Schieffelin Sayers, for appellant.

Walter D. Makepeace (Roy 0. Gasser, of counsel), for respondent.

MacLean, J.

The defendant admits so much of the plaintiff’s complaint as alleges that the defendant agreed to wire and install a motor and connect the same with a certain press in the printing-room of the plaintiff. The plaintiff further alleges that the defendant so negligently turned on the electric power Avhile the press, dynamo and motor were in his" hands, and at the time when none of the plaintiff’s employees Avere present, and so negligently conducted the work of installation that it Avas damaged. The trial justice found the facts to be as alleged by the plaintiff and accordingly rendered judgment in its favor, and was justified in so doing, for the electrician, employed by the defendant and called as witness by the plaintiff, testified 'that “ the plaintiff had supplied a neiv motor, and I had to Avire it * * *. I connected the neiv motor to the press by a belt, the samo *621belt that was there before. I started the press * * *. I then started it at the first speed, that is the slowest; after I started it at slow speed I looked over every thing to see if it was running, while it was running. * * *. When I saw everything running all right I speeded it up to the next speed. Then I gradually increased the speed notch by notch to see; that is what I did. I increased the speed until something broke in the press. * * *. It was running at full speed. After the break occurred I left the building. I looked at the press and saw it was damaged. * * *. I am not a professional pressman.” That he testified for the defendant that his attention was not called to the fact that the pulley on the new motor was a different size pulley from that on the old motor would seem of no importance, notwithstanding another of defendant’s witnesses testified, when asked if he could tell with reasonable certainty what might have caused this break, “ the only thing that I can see or know of would be the increased size of the pulley which increased the run of the press,” for when the defendant had installed the new motor and made the connection so that it would actuate the press, and his electrician had started it up and *“*saw everything running all right,” he had certainly done all that he agreed to do, and, not having furnished the new motor, was not called upon to test it, unless requested so to do, particularly by one, a self-confessed nonprofessional pressman.

Dttoko, J., concurs.

The judgment should be affirmed.

Scott, J.

(dissenting). I am unable to find in the case any evidence that the damage to the press was caused by an act of negligence on the part of defendant’s employees. It seems to have been assumed by the learned court that the act of running the motor at full speed was the sole cause of the wrecking of the press. All that is shown by the evidence was that the break was coincident with the increase of speed, and there is nothing to exclude the possibility that *622there was some defect in the press .itself which led to the injury. The plaintiff’s contention appears to he that the mere fact of running the motor at speed was negligent. Of this there is no proof. The plaintiff itself furnished both the press and the motor. All .the defendant was employed to do was to make the connection. It was proper that defendant should test the connection in order to see that it worked properly. If the motor was too strong for the press, or if there was danger in running it at speed, the plaintiff should either have warned defendant’s servant of the danger, or should have left an expert pressman to superintend and oversee the testing of the connection. It did neither. It had no right to assume that defendant’s employee would know that it was safe to run the motor at half or three-quarter speed, and dangerous to run it at full speed.

Judgment should be reversed and new trial ordered, wife costs to appellant to abide the event.

Judgment affirmed.