Opinion
December, 1911.
Present — Ingraham, P.J., (dissenting), McLaughlin, Clarke, Scott and Dowling, JJ.
Judgment and order affirmed, with costs. No opinion.
I dissent upon the ground that the last instruction to the jury on the subject of negligence, charging the plaintiff's first and second requests, left out the provision of the statute which requires that the person for whose negligence the defendant shall be responsible must be a person in the service of the employer intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence; that this was error, to which the defendant excepted; and for this reason I think there should be a new trial.