January 8, 1906.
Julius M. Mayer, Attorney-General, and Willis H. Tennant, Deputy Attorney-General, for the appellant.
Horace G. Pierce, for the respondent.
In Althorf v. Wolfe ( 22 N.Y. 355) the head note in part reads: "One who directs his servant to remove snow and ice from the roof of his house is responsible for an injury received by a passenger in the street from such snow and ice, whether the negligence was that of the servant or of a stranger whom he employed, or who volunteered, to assist him." We agree that this bridgetender was not in the performance of his regular duties at the time that he performed the negligent act which caused the injury. No liability, therefore, can be imposed upon the State by reason of that relationship. The foreman of the repair gang, however, in the employ of the State, was required to exercise due care that in the making of those repairs no damage should be caused. If one of his servants in removing the plank had thrown it upon the claimant the State would, confessedly, have been liable. Under the authority cited, if a stranger had been asked to assist in removing the plank, and through his negligent act the injury had been caused, the State would have been liable. The act of the bridgetender, though for his own purposes, was in aid of the work which the foreman was there to direct. His act was with the acquiescence of the foreman whose duty it was to see that those planks were removed with reasonable care. In our judgment his work should have been directed by the foreman with equal care as the work of those servants who were employed to work under him, and that for his negligence, while he was thus removing the plank with the acquiescence of the foreman in the employ of the State, the State is itself liable.
The judgment should, therefore, be affirmed, with costs.
All concurred, except PARKER, P.J., and CHESTER, J., dissenting.
Judgment affirmed, with costs.