The plaintiff has recovered a verdict for damages to her property occasioned by the negligence of a driver in the service of the depart*260ment oí street cleaning of the city of New York, who allowed his horses, and cart to collide with a fire hydrant, breaking, it down in such a manner as to cause the water therefrom to flood the plaintiff’s premises.
TJie evidence.was sufficient.to support- the. verdict, if. the. relation oft thejdriver.to., the. city*,,at;the.timerofvthe;accident,, was: suoli as to render the city liable* forhis- acts...
I. entertain no doubt that it was. Assuming, as was testified by tiie.fb.reman.oi'. the. street, cleaning, department.in the. locality, that thadiorsesj. truck,and dr-iven'werediired'.by, the. city from-.the firm of Ilillf & Hays: to dtr> street cleaning work, and? that the* driver received’ his payfram tile firm and not from tile city^ these facts waul'd'not prevent" the city from Being, liable for. tile driver’s negligent acts,, provided, they, oce.ur.nedi in. the course, and, within: the stiopeiofi Lia - em ploymen t„ (Higgins v. W. U. Tel. Co., 156 N. Y. 75.) Indeed, the learned assistant corporation- counsel says in his brief that it may be conceded" nndfer the decision cited' that" “'if the driver.of.the truak.of.'Hill.& Hays.was,at.the. time.of his.-negligent act,, engaged, in, the actual, wank of. the. city; and was-, performing tliatiworkr.undeii' the- directions, and? ini accordance with instr uctions ffom the foreman or-other competent authority-in the Department ,of Street Gleaning, the defendant might be liable.” Its liability is denied,,however,, because*the alleged negligence, occurred while,the éwffl was r.&por.tin-gto the foremanfron duty..
What happened was this.: The driver drovemp to-the foremans station,, and,.leaving his Lomee and truck, unattendecLin the street;, wentv into, the siatiom to. report to the foreman» fan work, as he was required.by the. city. to. dojust.as.he said, to the., foreman,, “ Here’s the horses and truck from Hill & Hays,” the horses ran away and brake; the - hydrant.,
It has frequently been held to be. negligence tb leave; horses unfastened and unattended in a public street. (Pearl v. Macaulay, 6 App. Div. 70 ; Brand v. Barden's Condensed Milk Co., 89 id. 188.) It being a part of the duty of the driver to report to the-foreman for directions as to the details of the work which he was to do, it seems to me quite clear that he was in the service- of the city while engaged? in so reporting- himself; and- that Iiis- negligent conduct in leaving his horses so* that -they coulif rum away must he regarded-as *261having occurred within the scope of his employment. It is to be observed .that die was .not .called upon to apply to .the .foreman .to ascertain whether .lie was ,to .be-.employed .or .not. .That'question had .evidently «.been .settled by .the-citjy beforehand with the .firm from which it hired him. He had to r.qpoif .in order to .find .out just what he was to do .on .that day. This is evident from the foreman’s testimony: “ He just came in to report for work; they have to every morning; every driver has to report for work, even the'¡department drivers'; we diave‘to send them'to where: ashesaaro to’be removed.” And previous statements "d'f 'this same "witness showed that he distinctly understood that 'the horses, "truck' and driver were in the defendant’s employ at the time of the accident, "as for example : '“"When this man "brought 'this wagon up There'he •brought it .for .use by the city and delivered 'it there; 'lie deft The wagon there.;to rqpoEt-.to me.; Jib left it .in charge .of the -.city; -he had to'-report there as to its" time; die-did nottstay f'here.amb.dotany work; The horses ran'away'beforedieffiadfhe-chaneeto-go'dfber ibor bring "it to me!”
It was .not terror .to refuse .to change .the _ jury that they must render a verdict for the defendant if they found “ that the -drivermnd team and‘truck "belonged To a third «party;” .As Unas «already «been pointed out, "«all might" have 'beendiiredTrom'af bird ’party, Who’paid the driveris wages, and jet the city might'be. liable.
The judgment .and order .should he,.affirmed.
Hirschberg, P. J., Woodward and Miller, II., concurred: Hooker, J.,.-not"voting.
Judgment and order affirmed, with costs.