The defendant carries on an extensive business consisting of several departments. A man named Greenough was general superintendent and Knapp represented him in the room in which plaintiff was employed when Greenough was absent. Knapp was, therefore, “acting as superintendent” in the absence of Greenough; Knapp had under his charge forty or fifty men. He did no actual work whatever, but gave orders to these men. Among the pieces *181of machinery operated under- the direction of Knapp was the electrical contrivance, the actual manual operation of which was conducted by the plaintiff. This crane was a part of the machinery in this room and was under the control of Knapp. He, directed the plaintiff to operate it and the accident resulted. I think within the authorities and within the plain meaning of the Employers’ Liability Act Knapp was acting as a superintendent. (Laws of 1902, chap. 600, § 1, subd. 2; McHugh v. Manhattan Ry. Co., 179 N. Y. 378 ; McBride v. New York Tunnel Co., 101 App. Div. 448.)
I am also of the opinion that the act was one of superintendence. This crane was not operated except under the direction of Knapp. The plaintiff had no right to move it unless directed to do so. It was a contrivance necessary to the transaction of the business and within the -radius of Knapp’s employment.
I think the nonsuit was error and the judgment should be reversed. '
Hiscock, J. (dissenting):I dissent. It seems quite clear that a jury would have had a right to find that Knapp was a superintendent or acting as superintendent within the meaning of the statute, and that he turned on the electricity which injured plaintiff. The closer question is whether the-jury would have had aright to find further that his act in so doing was part of or in connection with his duties as superintendent, rather than a mere individual, personal act for which the employer would not be liable. T think, however, that it would have been permissible for them to draw the former inference. Knapp was constantly at work around the shop superintending men and giving directions with reference to the movement of this crane. Those were some of the duties which he was engaged in at the time of the accident. If he had ordered plaintiff or some other employee to turn on the electricity and set the crane in motion, I think that the fair presumption would be, in the absence of contrary evidence, that he did this in pursuance of his duties. If this conclusion is correct, then I think it would be just as permissible for the jury to find that when he attempted to set the machine in motion by his own hand, rather than by that of another acting under his orders, it was in the prosecution of his authority and for the purpose of *182promoting the work which was subject to guidance. (McBride v. Hew York Tunnel Co., 101 App. Div. 448; Randall v. Holbrooh Contracting Co., 95 id. 339 ; Roche v. Lowell Bleachery, 181 Mass. 480.)
Judgment affirmed, with costs.