Opinion
June, 1924.
Judgment reversed upon the law and the facts, and a new trial granted, costs to abide the event. It appears from the undisputed evidence that defendant furnished an adequate supply of suitable chains with which to prosecute the work in which plaintiff was engaged. If such be the fact, the failure to use such chains was an error of judgment or the neglect of the foreman, for either of which the master would not be responsible. ( Vogel v. American Bridge Co., 180 N.Y. 373; Cullen v. Norton, 126 id. 1; McConnell v. Morse I.W. D.D. Co., 187 id. 341; Dair v. N.Y. P.R. Steamship Co., 204 id. 341; Wells v. Westinghouse, Church, Kerr Co., 147 App. Div. 156; Desmond v. Foundation Co., 142 id. 537.) The testimony in relation to the furnishing of such chains was given entirely by defendant's employees. The jury were not obliged to accept the testimony, but this question was not submitted to them for determination. Kelly, P.J., Rich, Jaycox and Young, JJ., concur; Kapper, J., dissents on the ground that the repair of the chain and its continued use thereafter were the acts of the master, regardless of the grade of the servant who made the repair and directed its continued use.