Opinion
March 11, 1938.
Present — Lazansky, P.J., Carswell, Adel, Taylor and Close, JJ.
Action for damages for personal injuries received while plaintiff was working as an employee of the defendant on her premises, removing a partly fallen tree. Judgment for the defendant dismissing the complaint unanimously affirmed, with costs. Assuming that Smith was the alter ego or vice principal of the defendant, she was not responsible for his negligent act in striking with an axe the branch of the tree upon which plaintiff was standing while he was likewise engaged, in conjunction with Smith, in removing the tree. The defendant would be liable for the acts of Smith in his capacity as alter ego or vice principal in an action at common law in so far as his conduct constituted a breach of duty of a non-delegable nature such as a failure to furnish a safe place to work. She, however, is not responsible for the personal acts of negligence of Smith as her alter ego in so far as those acts of negligence are the acts of a mere servant engaged jointly with the plaintiff in doing work of the same grade and nature as was being done by the plaintiff. In other words, it was the nature of the work or act of Smith, and not his rank, that determines the question of liability. ( Crispin v. Babbitt, 81 N.Y. 516, 520; Hussey v. Coger, 112 id. 614, 616; Cullen v. Norton, 126 id. 1; Fay v. De Camp, 257 id. 407, 411; 4 Labatt's Master Servant [2d ed.], p. 4142; 1 Shearman Redfield on Law of Negligence [6th ed.], § 231.)