Opinion
December 17, 1926.
Appeal from Supreme Court of New York County.
William Mann of counsel [ Alex. S. Lyman, attorney], for the appellant.
Harold R. Medina of counsel [ Joseph Levy with him on the brief, Levy Becker, attorneys], for the respondent.
Present — CLARKE, P.J., MERRELL, FINCH, MARTIN and BURR, JJ.
The plaintiff seeks to recover damages from defendant for alleged negligence on the part of defendant's servant.
The captain of a tugboat owned by defendant, in attempting to reach and save the life of a deckhand, a member of the crew who had fallen overboard, reversed the engine and backed the tugboat. It is asserted by plaintiff that in so doing the resulting suction drew the deckhand underneath the propeller and caused his death by drowning.
No claim is made that the plaintiff's intestate was thrown into the water as the result of any negligence on the part of the defendant or its servants.
It is apparent, therefore, that the plaintiff seeks to hold the defendant liable because one employee in an attempt to save another employee, erred in his judgment as to the best method to pursue.
Assuming the facts as stated by the plaintiff, the defendant is not liable. (See Maguire v. Barrett, 223 N.Y. 49; Lewis v. L.I.R.R. Co., 162 id. 52.)
The judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
Judgment and order reversed, with costs, and complaint dismissed, with costs.