Opinion
December, 1929.
Present — Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ.
Judgment unanimously affirmed, with costs. Whether the steam shovel was the defendant's personal property and was rented out by him together with the men to operate it, or whether it was the property of the corporation with which the defendant said he was connected, was a question of fact under the pleadings and proof. There is no dispute in the facts as to the renting of the machine together with the men to operate it, nor is there any dispute that the lessee of the machine had no control over it or the men who operated it, but that the only part with which the lessee had to do was to indicate when and where the work was to progress. In the circumstances, a verdict that the engineer was the ad hoc servant of the plaintiff's employer would have been contrary to the evidence. There was, therefore, no error in charging the defendant with being the master. ( Henry v. Stanley Hod Elevator Co., 129 App. Div. 613, and cases therein cited; Charles v. Barrett, 233 N.Y. 127; Meade v. Motor Haulage Co., Inc., Id. 527; McNamara v. Leipzig, 227 id. 291.)