. I am unable to concur in the opinion of Mr. Justice Hatch, because it is opposed to the rule laid down in Vogel v. American Bridge Co. (180 N. Y. 373). The principle there applied is the one to be applied here and necessitates an affirmance instead of a reversal of the judgment.
' In- that: case the defendant was engaged in erecting an iron or steel frame for a building. The supervision of the work, including the employment and. discharge of workmen, was committed to a foreman.. During the progress of the work it became -necessary to raise an iron or steel truss to an upright position. An effort was made to do this by a rope which, after passing around the .truss, ran to . the block and tackle of a derrick. The rope' which was . - used was first examined by some of the'men engaged in doing the work and by them rejected as not being strong enough, and thereupon some of them went to a house nearby for the purpose of get- . ting another. They were there met by the foreman, who inquired what they wanted, and on being informed, told them the rope they had was strong enough, and to go back -and use. that. They went back, this rope -was used, and in raising the truss.the rope broke and plaintiff was injured. It was held that the foreman was not the alter ego of the defendant and that the use of the rope was due either to his negligence pr "error of judgment, for' which defendant ' was not liable.
In the case now before us the defendant was also engaged in erecting an iron or steel frame for a building, and during the progress of the work it became necessary to move some iron or steel *411beams which lay on the ground from' one side of the building to the other. The method employed for doing this was by the use of what, is termed a “ buggy,” which consisted of two wheels connected by an axle, with a tongue about fourteen feet in length. A chain was attached to ihe axle, this was passed around the beams a little beyond the center and then after they had been lifted from the ground, one end of the beams was fastened to the tongue by means of a rope. The man who had charge of the work was not the general foreman, as in the Vogel case, but one who simply had charge of the gang of men engaged in moving the beams. He did not have the power to hire or discharge men, or in fact any power, so far as appears, except to give directions as to the manner in which the beams should be moved. After the “ buggy ” had been placed in position it was suggested by some of the workmen that the rope which they had was not strong enough, and thereupon one of them went for another, but returned without having procured it, and the foreman directed that the one which they had be used. It was used, broke, and plaintiff was injured. A fair consideration of the' testimony bearing on the subject shows that there were other ropes which could have been procured. However, this is immaterial under the rule laid down in the Vogel case. The use of the rope was due either to the negligence or .error of judgment of the foreman, for which defendant was not liable. He decided that the rope was sufficient and directed that it be used. This is precisely what took place in the Vogel case. The cases cannot be distinguished in principle, and unless this court is to refuse to be bound by Or to follow the decisions of the court of last resort, then the judgment appealed from must be affirmed. • '
Ingraham, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant, to abide event.