The Industrial Board found that, while the employee was driving his employer's car, "a police officer of the city of New York jumped on the running board of said taxi, and ordered the deceased to chase another car, and a touring car suddenly cut him off and the car of deceased swerved into a trolley car," with the result that the employee sustained injuries from which he died. The finding was evidently based on two reports of the employer. In one of these the employer stated: "Police officer commandeered cab." In the other: "Police officer jumped on running board and ordered driver to chase another car." In view of the word "ordered," used by the Board in its finding, and the words contained in the reports upon which that finding was based, it is idle to say that the police officer contracted with the cab driver for a ride in his cab. He did nothing of the sort. He "ordered," that is to say, he commanded the driver to chase another car. The order was given, and obedience thereto was yielded, because of the provisions of section 1848 of the Penal Law. They are as follows: "A person, who, after having been lawfully commanded to aid an officer in arresting any person, or in retaking any person who has escaped from legal custody, or in executing any legal process, wilfully neglects or refuses to aid such officer is guilty of a misdemeanor." Unquestionably when the employee, in obedience to a lawful command, gave aid to the police, he became himself a member of the police department. (Monterey County v. Rader, 199 Cal. 221; Village of WestSalem v. Industrial Comm., 162 Wis. 57.) The direction which he took; the speed at which he drove his *Page 21 cab — these became subject to the supervision and control of the policeman on the running board. Since, from then on, in all his movements, he must have yielded obedience, not to his original employer, but to the officer, he ceased to be a servant of the former and became a servant of the police department of the government. The argument that he remained the general employee of his original employer and a special employee of the police department is not tenable. All the cases dealing with general and special employment proceed upon the theory that the work of the special employment is performed at the instance of the general employer. Here the original employer was not aware that his employee had been impressed into the police service and, therefore, could not have given its consent or its direction that the services should be performed.
I favor a reversal.
POUND, CRANE, ANDREWS and LEHMAN, JJ., concur with CARDOZO, Ch. J.; O'BRIEN, J., concurs in result in separate opinion; KELLOGG, J., dissents in opinion.
Order affirmed.