The decision in Aikin v. Was-son, (24 N. Y. Rep. 482,) does not control the question now before us. The case is not analogous. The plaintiff, there, was a contractor for the construction of a portion of the road of the Albany Northern Eailroad Company, of which the defendant therein was a stockholder. He was no more a servant of the company than any manufacturer who contracted to. furnish them with rolling stock—with locomotives_ or passenger cars. None are servants in a legal sense, but those who act in subordination to others, under whose order, direction and control they are acting for the time being. The employer can, in such case, direct and control every act of the employee connected with the particular service in which he is engaged. The one commands ; the other obeys ; the one is proprietor and superior ; the other is merely a helper. In short the relation is that so long and well known to the law—the relation of master and servant. It .requires a state of subordination, essentially different from that known in any other capacity, in which one contracts to do something for another. A person who has contacted to construct a railroad is in no such state of subordination. For a certain specified sum of money, he undertakes to construct the road within a specified time. He is not subject, in the performance of the work, to the immediate direction and control of the other party. A secretary, on the other hand, who is employed by the week, month or year, is. under the continual supervision *299and direction of his employers, whom he is hound in the minutest particular relating to his employment-to obey; and therefore, I think the case of Richardson v. Abendroth, (43 Barb. 162,) was correctly decided. The capacity in which the plaintiff in the case before us, was employed by the Pacific Coast Petroleum Company, was, in this respect, analogous to that of the secretary. He was employed as a civil engineer and traveling agent, at a fixed salary. He was, in every act relating to this employment, in subjection to the company, bound, as to the time and manner of performing his duties, to follow their directions, and implicitly obey their commands. He was, in this capacity, their subordinate helper.
[New York General Term, June 3, 1867.He was, therefore, in my opinion, a servant, under section 18 of the act of 1848.
The order should be reversed, and the demurrer overruled, with liberty to the defendant to answer within twenty days, costs to abide the event.
Leonard, Clerke and Welles, Justices.]