On the 3d day of August, 1895, Edgar A. Hallett, a locomotive engineer in the employment of the defendant, was killed, and this *124action was brought to recover damages for the pecuniary injuries sustained by the widow and next of kin upon the ground that his death was caused by the alleged negligence of the defendant. Upon the trial, at the close of the plaintiff’s ease, the complaint was dismissed, and from the judgment thereafter entered the plaintiffs have appealed,
' The evidence introduced upon the .trial established that, on the morning of the day of the accident,, Hallett started from New York with a locomotive engine, attached, to a passenger train, to go to Chatham, on the Harlem railroad, ¡and that when the train arrived at or near Craryville, it, by reason of an open switch, was thrown upon a side track, derailed and Hallett killed. The evidence also established that, at the time of the accident, the Western Union Telegraph Company was, and for some time immediately prior thereto had been, engaged in building or repairing its telegraph line which extended along the side of the defendant’s railroad tracks, and that for the purpose of transporting the necessary materials it used on the defendant’s tracks, with the defendant’s consent, a hand car, which, as occasion required, was pushed from place to place by the employees of the telegraph company; that when the telegraph company was about to commence the work of such construction or repair, its foreman, having, charge of that work, notified the defendant through its train dispatcher, and requested that the defendant detail one of its servants “to protect the tracks” while the work was being done, in response to which the defendant detailed one Abraham, or “ Brownie,” Miller, who took charge of the hand car so far as it became necessary to protect trains running on the defendant’s road from colliding with it; .that Miller, alone, had the keys of and was the only person who was permitted to turn the switches on the railroad tracks.; that he knew the'time when trains would pass, and when the hand car was upon the main track he was the flagman, and was stationed either in front of or behind it; that the defendant had other servants who took Miller’s place in his absence, though, as a general thing, he accompanied the employees of the telegraph company having charge of the car, and when he did so his wages were paid by the telegraph company ; that on the day of 'the accident, shortly before ‘the arrival of the train hauled by the locomotive engine operated by the intestate, the foreman in charge *125of the work for the telegraph company directed that certain materials be placed upon the l^and car which was then standing upon the main track, and that the car be pushed on to the side track at Craryville; that the materials were placed upon the car, and it was then moved by the telegraph company’s employees under the direction and control of Miller to the place designated, the switch being opened by him for that purpose, which switch he negligently and carelessly omitted to close before the arrival of the intestate’s train, and by reason thereof the unfortunate accident happened with the result before stated.
The learned trial justice was obviously of the opinion that Miller was a co-employee of the plaintiff’s intestate, for whose negligence the defendant was not responsible; and, if he was right in that conclusion, then the judgment must be affirmed. That the plaintiffs ^ere not entitled to recover if the intestate lost his life by reason of the negligence of a co-employee, is' so well settled that it is unnecessary to discuss the proposition. The question, then, to be determined, and it is the only one which we deem it necessary to consider, is whether, at the time of the accident, Miller was in the employment of the defendant railroad or in the employment of the -telegraph company. If the former, then the judgment is right; if the latter, then it must be reversed.
Rules have many times been stated, and in many different ways, for determining whether one is in the employ of another, so as to constitute the relation of-master and servant between them. Thus, in Shearman and Redfield on Negligence (4th ed. § 160) it is said that “ He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work, but in all its details; ” and in Wyllie v. Palmer (131 N. Y. 248) it is said that “ The master is the person in whose business he (the servant) is engaged at the time, and who has the right to control and direct his conduct.” But all the authorities substantially agree that such relation exists when the master selects in the first instance, and may thereafter discharge, the servant, and can direct, while the employment continues, not only what work the servant shall do, but the manner or method in which he shall do it.
Applying this test to the facts here presented, it at once becomes *126apparent that Miller was the servant of the defendant and not of the telegraph company. He was, as we have ajready seen, selected in the first instance by the railroad company, and,it alone had the right-to discharge him; he was by it directed to do the work which he was doing. It furnished him with the appliances to do that workeys to the switches and flags to control the movements of trains, if that became necessary for their protection. When the hand car was upon the main track he acted ¡in the capacity of flagman. It was then in his care, and when it was there moved by .the servants of the telegraph company it was under his control. When'it was desired to move the car the telegraph company’s foreman would notify him of that fact, and then by his permission the same would be moved. The -work which he did! was on the defendant’s premises and was performed for its benefit, and when not engaged- in accompanying the car he rendered service^ for the defendant as brakemán on one of its trains. It seems- to ps clear under such facts that Miller was, in every aspect in which ¡his employment and the services which he rendered can be viewed, the servant of the railroad company and not of the telegraph company. The defendant of course could, with its own servants- have mpved the car for the- telegraph-company, but it also had the legal- right, subject, to its own manage'ment and control, to permit the telegraph company to move it with its- own servants, and an employee detailed by the defendant to take charge of the movement of the cdr would not cease, to. be in its employ in the latter case any more! than die would in the .former. It could just as forcibly be claimed ihat a servant designated by the defendant to take a private car over its road was, while performing that act, a -servant- of the owner of i the car and not of the defendant, as it can in' this case be claimed that, in rendering the services referred tó, Miller was the servant of the. telegraph company and not of the defendant. The defendant Icoul'd not hand over the operation of its switches and tracks to i the ■ telegraph company, but it could permit the telegraph company, subject to its management and control, to run a car over its . tracks!. That is just what it did and no more.
But it is urged by the appellants, inasmuch, as Miller when -he accompanied the car was paid by the telegraph -company,, that this, taken in connection with wliát he did, in- and of itself established *127the relation of master and servant between him and the telegraph company. We do not think so. While the payment of the wages to an employee is always an important fact to be considered, it is not decisive of the question whether the relation of master and servant exists. That fact must be taken in connection with the other facts and from them all the question must be determined. “ The fact,” says Judge O’Brien, in Wyllie v. Palmer (137 N. Y. 248), “ that a party to whose wrongful or negligent act an injury may be traced, was at the time in the general employment and pay of another person, does not necessarily make the' latter the master and responsible for his acts.” And in Shearman and Redfield on Negligence (4th ed. §§ 160, 161) it is said that “ The payment of an employee by the day, or the control and supervision of the work by the employer, though important considerations, are not in themselves decisive of the fact that the two are master and servant. * * * Servants who are employed and paid by one person may nevertheless be, ad hoe, the servants of another in a particular transaction and that too even where their general employer is interested in the work.”
Under all the authorities to which our attention has been called upon the facts presented in this record, it must, we think, bé held that Miller was the servant of the defendant engaged in a common employment with the intestate (McDonald v. N. Y. C. & H. R. R. R. Co., 63 Hun, 587; S. C. affd., 138 N. Y. 663), and for whose negligence the defendant cannot be held responsible.
In reaching this conclusion we have not overlooked the authorities called to our attention by the appellants, but they are not in point. In Wyllie v. Palmer (137 N. Y. 248) the defendant sold and shipped to the chairman of a committee of citizens of the city of Auburn some fireworks for a fourth of July celebration, and at the request of the chairman they sent one of their servants, with a boy, to assist in handling the larger pieces. The boy was directed by a member of the committee to discharge some rockets, and in doing so one of the plaintiffs was injured. The court held that a recovery could not be had because the defendants contracted, not to give an exhibition, but simply to sell and deliver goods; and that the fact that two persons in their general employment assisted in giving the exhibition did not change their relation to the transaction or make them *128liable, and that such employees were not, as to that transaction, engaged in defendants’ business or under their direction or control. In McInerney v. D. & H. Canal Co. (151 N. Y. 416) the plaintiff .was in the employ of a lumber dealer who had constructed upqn his own land a switch track extending from his lumber yard to the defendant’s tracks. The defendant’s servants, at the request of the lumber dealer, entered his yard for the purpose of- moving cars for him, and the court held that in doing that act they were the servants of the lumber dealer and not of the defendant. In Higgins v. Western Union Tel. Co. (156 N. Y. 75) the plaintiff was a servant of a contractor who had engaged to repair or reconstruct a building for the defendant. The work contracted to be done included the putting in of certain elevators which, at the time of the accident, had been placed in the building, but had not been turned over to or accepted by the defendant. The; defendant, however, at certain times used the elevators for the transportation of passengers, and for that purpose had a servant who operated the same. On the day the plaintiff was injured the contractor, for the purpose of plastering the sides' of the elevator shaft, used the elevator as a platform upon which Ms servant, the plaintiff, stood while doing that work. The defendant’s servant, who had at times operated the elevator, was directed by the contractor to move the same while the plaintiff was standing upon it, and in doing so 'the plaintiff was injured. The court held that the defendant was not liable; that the person operating the elevator was at the time the servant of the contractor, and not of the defendant; that the contractor had the right to use the elevator, and for. that purpose could have employed his own servant to operate it, but instead of doing so he borrowed the defendant’s servant who, for the time being, became the servant- of the contractor, engaged in doing.his work and subject to Ms orders.
It is apparent that each, of these cases is clearly distinguishable from this one. Here Miller, as wé have seen, was rendering services for the defendant upon its• premises and for its benefit. It hired and alone could have discharged him. The use of the hand car imposed an additional burden upon the defendant, inasmuch as greater care and caution had to be exercised by it in the operation of its road, and especially in the movement of its trains. This addi-' tional burden necessitated the services of an extra servant, and it *129was both legitimate and proper that his wages should be paid by the telegraph company, but such payment did not change the relation of master and servant existing between him and the railroad company. *
Other questions are raised by the appellants, but after an examination of them they do not seem to be of sufficient importance to be considered here.
It follows that the judgment is right, and must be affirmed, with costs.
Van Brunt, P. J., and Barrett, J., concurred; Rumset and O’Brien, JJ., dissented.