Opinion
April, 1896.
Yellott D. Dechert, for respondent.
David Leventritt and Albertus Perry, for appellants.
The defendant, The Fidelity Casualty Company, insured the plate glass in the plaintiff's premises. By the third clause of the policy the company agreed, at its option, to replace the glass, or to pay the actual value of the glass broken. The policy further provided: "Whenever necessary, the assured shall, at his own expense, remove any woodwork, gas fixtures, or other obstruction to the replacing of the glass."
The plaintiff notified the defendant company that the glass in his store window was broken, and thereupon the company notified the defendant Hutkoff, with whom it had a contract for that purpose, to replace the broken pane. Hutkoff sent his workmen to replace the glass. They found that the gas pipes outside the window interfered with the work, and notified the clerks in the store that they would have to be removed. Plaintiff leased the store to one Pape and the two men in charge of it were his employees.
The justice has found on conflicting testimony that the defendant Hutkoff's men worked at the pipes and negligently detached two lengths in the cellar and basement, so that when the gas was lighted that evening an explosion occurred which caused the damage complained of in this action.
A master is ordinarily liable to a third person injured through the negligence of his servant while acting within the scope of his employment. 14 Am. Eng. Ency. of Law, 804; Mott v. Consumers' Ice Co., 73 N.Y. 543, 547. "The test of the master's responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do." Cosgrove v. Ogden, 49 N.Y. 255, 257. Here the duty of the servant was fixed by the contract of insurance, which placed the obligation of removing gas pipes, and other obstructions, upon the owner. This was known to all the parties interested. If, therefore, Hutkoff's employees endeavored to remove the gas-pipes, they acted in so doing neither within the scope nor within the course of their employment, and the defendants cannot be held liable for such acts.
The judgment as rendered against both defendants is erroneous. The immediate employer of a servant is alone responsible for the latter's negligent acts. There cannot be two superiors severally responsible in such a case. Blake v. Ferris, 5 N.Y. 48.
The judgment must be reversed as to each defendant, with costs to abide the event of a new trial, which is hereby directed.
DALY, P.J., and McADAM, J., concur.
Judgment reversed, and a new trial directed, with costs to abide event.