Opinion
Argued March 17, 1932
Decided March 31, 1932
Appeal from the Supreme Court, Appellate Division, First Department.
Clarence S. Zipp and E.C. Sherwood for Atwell, Gustin, Morris, Inc., appellant.
Leo C. Weiler, Thomas E. Nolan and William E. Lowther for Terry Tench Company, Inc., appellant.
Benjamin C. Loder, J. Austin Lyons and Owen E. Reilly for respondent.
Judgment as to defendant Atwell, Gustin, Morris, Inc., affirmed, with costs. Judgment as to Terry Tench Company, Inc., reversed and new trial granted, with costs to abide the event, on the ground that it does not appear from the evidence that the act of the superintendent was within the scope of his employment; no opinion.
Concur: POUND, Ch. J., CRANE, LEHMAN, O'BRIEN and HUBBS, JJ. Not sitting: KELLOGG, J.