I am unable to concur in the opinion of the majority of the court. The defendant hired from one Farrell a truck, team of horses and a driver for the lump sum of seven dollars a day. In the ordinary course of business the truck was loaded by the employees of the defendant and the driver, the plaintiff herein, delivered said load where instructed.
I agree, within the rule laid down by Schmedes v. Deffaa (153 App. Div. 819; revd. on the dissenting opinion of Miller, J., 214 N. Y. 675) and Hartell v. Simonson & Son Co. (218 id. 345), that so far as third persons were concerned, the plaintiff although in the general employ of Farrell, became, pro hoc vice, the servant of the defendant, and, for torts committed by him while engaged in performing work for the defendant, that is, in driving the horses while delivering its material, it was responsible under the doctrine of respondeat superior. As stated by Mr. Justice Miller in the Schmedes Case (supra): “ The rule respondeat superior applies with the same force to a borrowed as to a regular employee. * * * In the Standard Oil Company Case [212 U. S. 215] Mr. Justice Moody referred to the accepted reason for the rule as given by Chief Justice Shaw in the oft-quoted case of Farwell v. Boston & Worcester Railroad Corporation (4 Metc. 49), i. e., that the master is held liable for the wrongs of his servant because the latter is conducting the master’s affairs, a reason which, I think, *777is sometimes overlooked in determining the master’s liability both to servants and to third parties. ”
But the case at bar does not come within that principle. The defendant is not being asked to respond in damages to a third person for the negligent act of his borrowed servant. It has been held hable to that servant for furnishing defective ways, works and plant to that borrowed servant, which it did not furnish, that is, for a defect in a wagon which it hired with horses and that servant from the servant’s general employer. That is an extension of the doctrine to which I am not prepared to agree. It puts the burden of responsibility and of inspection upon the hirer where, it seems to me, it does not belong.
I think the judgment apppealed from should be reversed.
Laughlin, J., concurred.
Judgment and order affirmed, with costs.