(dissenting):
Smith was the servant of the defendant. He was directed by his employer to take these ponies to the polo grounds and after they had been used by Cary to return them to the premises of the defendant. Eckert was assisting him ; that is, he was riding one of *473the ponies on the way back to the barn when the injuries were inflicted and through the negligence of Eckert. The accident occurred, therefore, while these men were engaged in the prosecution of the business of the defendant, and that is the test by which his liability is to be measured. (Cosgrove v. Ogden, 49 N. Y. 255; Quinn v. Power, 87 id. 535.) In the ñrst case cited the court say (at p. 257): “ The test of the master’s responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do. If the owner of a building employs a servant to remove the roof from his house and directs him to throw the materials upon his lot, where no one would be endangered, and the servant, disregarding this direction, should carelessly throw them into the street causing an injury to a passenger, the master would be responsible therefor, although done in violation of his instructions, because.it was done in the business of the master.”
It is not important that Eckert was not employed by the defendant, or that he was riding the pony contrary to the instructions given by the defendant. The point- is, Smith was in the prosecution of the defendant’s business and the latter cannot be relieved because his servant disregarded his instructions and permitted Eckert to ride one of the horses. (Hill v. Sheehan, 48 N. Y. St. Repr. 410.)
In that case the defendant was a livery stable keeper and it was the duty of one of his servants to drive a horse to an office in the city of Buffalo, and the servant engaged one Krueger to do this work .against the positive instructions of the defendant. Krueger while on the way to the office drove the horse in such a careless manner that he ran into and injured the plaintiff. A verdict was directed in favor of the defendant, and the General Term of the Superior Court of the city of Buffalo reversed the judgment entered upon this verdict. In commenting upon the rule here under consideration the court say (at p. 411): “ The direction by the court proceeded upon the theory that the relation of master and servant was not established, and consequently defendant was not liable for the act of Krueger; examination leads me to the conclusion that this ruling was wrong. We see that the servant of the defendant *474'was charged with the duty of delivering the horse; that he violated that duty in intrusting it to a stranger for delivery is equally true, hut such violation of duty does not lead to a discharge of the master from liability.”
And again : “ It is insisted that Krueger was in no sense defendant’s servant, and consequently he cannot be made liable for his •acts. ■ This overlooks the fact that by the act of the servant who was in charge, an instrument, i. e., Krueger, was used for the prosecution of the master’s business, and that such instrument inflicted the injury. It is not essential under such circumstances that the relation of master and servant should exist in order to fasten responsibility. It is sufficient when it appears that «the master’s business is being prosecuted by the instrument used.”
The logic of the prevailing opinion is that if these two horses had run way and inflicted the injuries complained of, the defendant would be liable for those committed by his servant Smith, but not ■for those which happened to be caused by the horse Eckert was riding. As both were' engaged in the defendant’s business, the distinction does not seem to be tenable.
The proof shows that Eckert started from the barn with Smith, riding one of the ponies to the polo grounds with the latter’s assent; that.he remained there while Cary was using the ponies, and when they were not engaged • assisted in blanketing cliem and walking them about, and continued his assistance by riding one- of them toward the barn. He was, therefore, in the prosecution of the defendant’s business during all the time that the ponies were under the control of Smith on this occasion. The servant may have deviated from his employer’s instructions, but that misconduct does not relieve the master, as at the time of the accident the men were returning to the barn with the ponies, which was the business
Smith was directed to attend to. ( Williams v. Koehler & Co., 41 App. Div. 426; Riegler v. Tribune Assn., 40 id. 324; affd., 167 N. Y. 542.)
When the defendant vested Smith with authority to manage the business in taking charge of these ponies he became responsible for the conduct of his servant, and if that servant employed or permitted another man to assist him, both came within the dominion of the defendant to such an extent that he is responsible to third per*475sons for the acts of both of them as long as they kept strictly within the business which was committed to the servant.
The judgment and order should be affirmed, with costs.
Judgment and order reversed upon the law, the court having ■examined the facts and found no error therein, and new trial ordered, with costs to appellant to abide event.