Brennan v. Yonkers Railroad , 232 A.D. 758 ( 1931 )

Judgment of the County Court of Westchester county affirmed, with costs. The question raised could have been avoided by the plaintiff’s bringing in the Hastings Railroad Company when the defendant interposed a denial of responsibility (Civ. Prac. Act, § 213), at which time the present defendant could have been examined before trial to determine the fact, wholly independent of the records in the office of the Public Service Commission. The controlling test was, whose work were these servants doing at the time of the accident? Upon this record, and particularly under the stipulation, it must be held that they were doing the work of the Hastings Railroad Company under a contract made by them acting for the Hastings Railroad Company with the plaintiff, which contract was separate and distinct physically from the contract of carriage for the Yonkers part of the trip. Lazansky, P. J., Young, Carswell and Tompkins, JJ., concur; Hagarty, J., dissents, with the following memorandum: The ear was leased by the Third Avenue Railroad Company to the defendant, Yonkers Railroad Company. The operators of the car were employed by the Yonkers Railroad Company and their salaries paid by it. The Hastings Railroad Company, under an operating agreement, reimbursed the Yonkers Railroad Company for the salaries paid by that company to its employees while operating the cars in the village of Hastings. In my opinion, the initial contract to transport the plaintiff safely controls and defendant is not relieved from responsibility by reason of its agreement with the Hastings Railroad Company.