(dissenting): ■
The complaint in this action alleges the incorporation of the defendant, and that on the 30th day of November, 1906, while plaintiff was at work upon a certain steamship alongside the dock at One Hundred and Fiftieth street and East river, borough of the Bronx, New York city, a certain hoisting derrick or engine belonging to the defendant, and in charge of one of the servants or. employees, was só carelessly and negligently handled and operated as to cause a large and heavy iron bucket, which was being let do.vvn into the place where plaintiff was. at work, to fall upon the plaintiff. The plaintiff was in the employ of one M. P. Smith & Sons, who were, the stevedores, and who at the time of the accident were engaged in unloading for the defendant a cargo at Oak Point, N". Y. At the opening of plaintiff’s case it appeared, upon cross-examination, that the firm of M. P. Smith & Sons was to discharge the ship, furnish the labor; that the Koclc.Plaster Company was to furnish'the gear and the hoisting .and the engineer and the steam, and that the firm were not to pay' the engineer. But it was further disclosed that the arrangement included supeiwision and control of all the men; Plaintiff’s witness, replying to the question, “ What did that supervision include \ ” says : “ Instructing him to hoist the tubs out of thé hold and lower them away; that.is, included the control and -directions,of the manner in-which they were to. run their engine, so that, the controLand the supervision and the running of the engine was done under directions and orders of M. P. Smith & Sons, and their men — their employees, and that was the' arrangement under which this steamship in question on November 30th, 1906, was unloaded.” With this uncontradicted testimony from plaintiff’s witness, the. court granted defendant’s motion to dismiss the complaint, upon the obvious ground that the engineer in the general employ of the Bock Plaster Conhpany, was for the purposes .of this work in the special employ of M. P. Smith & Sons, and was, therefore, a fellow-servant of the plaintiff. There was no question of disputed facts; the witness was produced' by the plaintiff, and while he now suggests that.-the witness was unfriendly, there is absolutely nothing in the record to break the force of the testimony, that the engineer, through whose alleged negligence the accident is said to have occurred, was under the direction and'con*755trol'bf the employers of the plaintiff. Under such circumstances all the authorities agree that there is no liability on the part of the general master. This general subject was fully discussed by this court in tlie case of Breslin v. Sparks (97 App. Div. 69), and the conclusion there reached is supported by the highest authorities, and is the law applicable to this case.
The judgment appealed from should be affirmed, with costs.
Rich, J., concurred.
Judgment reversed and new trial granted, costs to abide the event.