Conti v. Oppenheimer Casing Co. — 236 N.Y. 532

Majority

p. 532

Frank Conti, as Administrator of the Estate of Anna Conti, Deceased, Appellant, v. Oppenheimer Casing Co., Inc., Respondent, Impleaded with Others.

Headnote

Negligence — master and servant — injury through negligence of truck driver — complaint dismissed where it appears that at time of accident truck was owned and controlled by independent contractor.

Conti v. Oppenheimer Casing Co., 202 App. Div. 743 , affirmed.

(Argued April 20, 1923;

decided May 8, 1923.)

Appeal from a judgment, entered June 2, 1922, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate was caught between the tail of a truck which was being backed by the driver of another truck bearing the name of defendant, respondent, and a-loading plat

p. 533

form and received the injuries from which she died. The Appellate Division dismissed the complaint upon the ground that at the time of the accident the truck was. owned, operated' and controlled by an independent contractor.

George W. Smyth and Edgar É. Kraetzer for appellant.

F. A. W. Ireland and R. M. McCormick for respondent.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound and McLaughlin, JJ. Dissenting: Crane and Andrews, JJ.