Shinbaum v. Murphy — 287 N.Y. 529

Majority

p. 529

Florence Shinbaum et al., Respondents, v. Ella M. Murphy et al., Defendants, and Cross & Brown Company, Appellant.

Argued January 19, 1942;

decided March 5, 1942.

p. 530

William E. Lyons for appellant.

Murphy had full and complete freedom of activity in his capacity as real estate broker without control, supervision or direction by the company. His status was established as a matter of law to be that of an independent contractor for whose tortious acts in the operation of his own automobile the company cannot be held responsible. (Wyllie v. Palmer, 137 N. Y. 248 ; Osborg v. Hoffman, 252 App. Div. 587 ; 280 N. Y. 523 ; Brown v. Steamship Terminal Operating Corp., 267 N. Y. 83 ; Howitt v. Hopkins, 219 App. Div. 653 ; 246 N. Y. 604 ; Dunne v. Contenti, 167 Misc. Rep. 925 ; 256 App. Div. 833 ; Malloy v. Scott, 248 App. Div. 882 ; 275 N. Y. 496 ; Sudowski v. Toledo Scale Co., 243 App. Div. 553 .)

Sidney Pollack for respondents.

No error was committed by the trial court when it held as a matter of law that Murphy was an employee of the company and in this case it was responsible for his tortious acts. (Standard Oil Co. v. Anderson, 212 U. S. 215 ; Burdo v. Metropolitan Life Ins. Co., 4 N. Y. Supp. [2d] 819; 279 N. Y. 648 .)

We think the courts below erred in declaring as an inference of law that the codefendant Murphy was the servant of the defendant-appellant Cross & Brown Company rather than an independent contractor. Whether the one relation or the other existed between them was a question for the jury. (See Fritz v. Krasne, 273 N. Y. 649 ; Irwin v. Klein, 271 N. Y. 477 ; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60 .)

The judgments should be reversed and a new trial granted, with costs to abide the event.

Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., and Finch, J., taking no part.

Judgments reversed, etc.

Cases cited

Wyllie v. Palmer 137 N. Y. 248 N.Y. 1893-02-28 p. 530
Osborg v. Hoffman 280 N. Y. 523 N.Y. 1939-02-21 p. 530
Brown v. Steamship Terminal Operating Corp. 267 N. Y. 83 N.Y. 1935-04-16 p. 530
Malloy v. Scott 275 N. Y. 496 N.Y. 1937-07-13 p. 530
Standard Oil Co. v. Anderson 212 U. S. 215 SCOTUS 1909-02-01 p. 530
Fritz v. Krasne 273 N. Y. 649 N.Y. 1937-04-20 p. 530
Irwin v. Klein 271 N. Y. 477 N.Y. 1936-07-08 p. 530
Claim of Glielmi v. Netherland Dairy Co. 254 N. Y. 60 N.Y. 1930-06-03 p. 530