(dissenting.) If this action was brought by the owners of the canal boat Parsons, for injuries to the canal boat, caused by the negligence of either or both of the defendant’s towing boats, the question for the jury would be, 1st. Whether such negligence was proved; and if they decided in the affirmative, did the owners of the canal boat, or their agents, by any negligence on their part, contribute to produce these injuries; and, if they did, the jury should be instructed to find for the defendant. In the case before us, the plaintiff is the assignee of the owner of a cargo of corn, who placed it on board of the canal boat, for transportation to the city of Hew York, and on the arrival of the boat in Albany caused an agreement to be made with the defendant to tow it by one of his steam towing boats, thence to its place of destination. Is the negligence of the master of the canal boat the negligence of the owner of the cargo ? The case of Milton v. The Hudson River Steamboat Company, (reported in the 4th Transcript Reports, 252,) has been referred to as conclusive *564on this question. That action was brought for the loss of a cargo of stoves, shipped in a canal boat on the Brie canal, in some part of Onondaga county, caused by the alleged negligence of the towing company. Although the latter did not place the canal boat in between two deck boats in the tier of boats in which she was placed, as it had contracted to do, as the referee reported that the crew of the canal boat did not exercise proper care over the said boat in the position in which she was placed, the Court of Appeals decided that the towing company was not liable; and in doing so, of course decided that the contributory negligence of the crew of the canal boat was the negligence of the owners of the cargo. In both the opinions delivered in the Court of Appeals, the boat is treated as the boat of the shippers, and the question which I am now considering was not noticed by the court, .and I presume not raised by the counsel. In that case it appears that “the plaintiff had hired and chartered the canal boat, for the purpose of transferring the cargo of stoves from Onondaga county to Hew York, paying the captain a price per day for his own and the crew’s services.” The evidence, or the stipulation, in the case before us, shows that White’s Bank* the owner of the corn, shipped the same in the canal boat, and that the proprietors of the boat agreed with the bank to transport the same to Hew York. The relation of the owners of the cargo to the canal boat seems to me very different, in this case, from what it was in the case to which we have been referred. In the one, the owner of the cargo chartered and took possession of the boat, hiring the-master and crew, paying them daily wages, and thus exercised complete control over both the boat, the master and the crew. Of course he was responsible for their negligence; and if that negligence contributed in any degree to the loss, whatever may have been the negligence of the towing company, the *565latter was not liable. In the other, (the case before us,) the canal boat remained under the control of the proprietors of the boat, who employed and paid the master and the crew. .1 am, therefore, of opinion that the plaintiff is not answerable for the negligence of the master and crew, of the canal boat Parsons, and that the only inquiry in this action is whether the master or crew of either or both of the towing' boats (the McDonald coming down, or the Austin going up, both owned by the defendant) caused or contributed to the injury of which the plaintiff complains. This is in the nature of an action of tort; the act complained of is tortious; and the plaintiff has his election to proceed against all the tort-feasors jointly, or any one of them severally. If I am right in this view of the case, the judgment should be affirmed, unless errors were committed by the judge at the trial, in his rulings or his charge, prejudicial to the defendant. According to this view, he erred in submitting to the jury the question of negligence on the part of the captain and crew of the canal boat. But this was an error not prejudicial but advantageous to the defendant; as it increased his chances of a verdict in his favor, by telling the jury whether negligence was or was not committed by the defendant, if they were satisfied it was committed, in any contributory degree, by the master and crew of the canal boat, the defendant was entitled to a verdict. I have carefully examined the various exceptions to the rulings and the charge. Most of them relate to the question of negligence on the part of the master and crew of the canal boat; which have no application to the ease, under the view I have taken. The only one about which I had any hesitation is the exception to the ruling at folio 349. The witness was asked to state whether any thing could be done on board the McDonald, to avoid the collision. On reflection, I think that it was properly excluded. The witness was called on behalf of the defendant, and was one of the pilots of the *566McDonald. The question was leading, was too general, and called more for the opinion of the witness than for his recollection as to facts.
[New York General Term, June 7, 1869.The judgment should he affirmed, with costs.
Hew trial granted-.
Clerke, Ingraham and Sutherland, Justices.]