Opinion
Argued January 15, 1963
Decided February 21, 1963
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOHN J. FLYNN, J.
Benjamin Heller and Aaron J. Broder for appellant.
Robert D. Foglia and E. Edan Spencer for Emily Welsch, as executrix of J.H. Welsch, deceased, respondent.
Irving Miness and Edward A. Harmon for remaining respondents.
Judgment affirmed, with costs; no opinion.
Concur: Chief Judge DESMOND and Judges DYE, VAN VOORHIS and SCILEPPI. Judges FULD, BURKE and FOSTER dissent and vote to reverse and to grant a new trial on the ground that a question of fact is presented as to whether the crane operator and oiler were employees of the crane owner, Welsch, at the time of the accident ( Bartolomeo v. Bennett Contr. Co., 245 N.Y. 66; Kristiansen v. Wagner's Steel Erectors, 295 N.Y. 668).