Plaintiff sought to recover damages for injuries sustained as a result of the negligence of the defendant in the operation of defendant’s automobile in which the plaintiff was a passenger. The accident happened on November 30, 1938. The plaintiff-appellant was employed by the State of New York in the Highway Department as one of a gang of maintenance men. The last day they worked prior to the date of the accident was November 25, 1938.
The defendant, as foreman, was instructed by the Superintendent of Highways to bring the men into the office on Frederick street in Binghamton, N. Y., to sign the payroll on the last day of each month and to take them home again. Defendant furnished a truck in connection with his work and was paid for the use thereof as well as for being driver, and was allowed two hours, going and coming, to bring them in and take them home. The men, themselves, also got two hours’ pay allowed for the same purpose.
In accordance with the foregoing instructions, on November 30, 1938, defendant went out to get the men to bring them to sign the payroll. He started from his home at a quarter to twelve and went to the home of the plaintiff at Kirkwood, got him, and went to Kelmer’s home and got him. When they were all gathered they went to the Highway Department office to sign the payroll and signed it between twelve and one o’clock. From there they went to four other places trying to get deer licenses and shells. After having attended to those errands they got back into Court street on their way home, the identical road and covering the same route used in coming to sign the payroll, and traveled on it about a distance of six miles when the accident occurred.
After they signed the payroll they went to, among other places, a beer parlor. The accident occurred between four and five o’clock. A period in excess of three hours and less than four hours elapsed between the signing of the payroll and the time of the accident.
The court denied the motion to dismiss the complaint on the grounds of failure to establish negligence and freedom from contributory negligence but decided that, as a matter of law, the accident occurred while they were engaged as coemployees in the course of their employment and that the remedy under the provisions of the Workmen’s Compensation Law is restricted to applications for compensation under that law. In our judgment this was error. There were questions to be submitted to the jury as to whether they were coemployees, as .to whether three to five hours’ deviation was reasonable under all the circumstances.
The judgment of nonsuit should be reversed and a new trial granted, with costs to abide the event.
*1005Judgment reversed and new trial granted, with costs to abide the event.
Crapser, Bliss and Schenek, JJ., concur.