The defendant contended that the use of his automobile by the chauffeur in taking the latter’s clothing to the laundry was not the master’s business or within the scope of his employment, and relied on Cunningham v. Castle (127 App. Div. 580). The court announced that it would not follow that case and that if the defendant consented that the chauffeur might use the car he was liable for the chauffeur’s negligence. This was duly excepted to. This same proposition was reiterated in the charge. In response to requests to charge, and at the suggestion of the plaintiff’s counsel, this was perhaps somewhat substantially modified. After a careful'reading of the charge and the rulings upon the various requests,.it is clear that the jury did not fully understand the real question of law which applied to.the facts in the case, and it. is probable that it acted in the'belief that the proposition first stated was right. The question of the defendant’s liability, as it was finally left before the jury, ■was in such an uncertain manner that, the court is satisfied that the defendant was prejudiced by it. The evidence is not sufficient to show that the chauffeur, at the .time of the negligence, was acting in his employer’s business or within the. scope of his employment. '
The judgment and order should be reversed upon the law and the facts, and a new trial granted, with costs to the appellant to' abide the event.
All concurred, except Houghtou, J., dissenting, in opinion.