Smith, J.:
The defendants’ truck was being driven by a chauffeur on Cherry street in the eastern part of New York city at the time of the accident. The truckman had taken a load of goods from the defendants’ place of business to Staten Island. On his return his natural and *34direct route would have been to have come from the Staten Island ferry on the west side of the city to the garage which was situated on Twenty-third street near Eleventh avenue. Instead of that he drove over to the east side of the city and stopped at Hamilton street to see his mother who was sick. Hamilton street and Cherry street run about at right angles to Catherine street. There were block parties upon both Hamilton and Cherry streets. After the chauffeur had been visiting his mother for about twenty minutes he came out and found the truck loaded with boys dressed up in fantastic costumes. He took these boys around different streets in the neighborhood for a drive and finally got back to the corner of Catherine street and Cherry street. There, according to the evidence of the plaintiff and one of his witnesses, the chauffeur stopped and got off from the truck and visited with a man in front of a pool room. When he got on to the truck he told the boys all to get off and repeated it three times. Some of them had gotten off. Before they had all gotten off, however, and before the plaintiff had gotten off, the truck started up. Plaintiff’s foot was caught in a sprocket wheel and he suffered the loss of his leg, damages for which this action is brought. While the chauffeur was taking these boys for a ride around Catherine street and these other places he clearly was not engaged in his master’s business. If the accident happened at that time then the plaintiff cannot recover. The jury were at liberty to conclude, however, that this frolic had stopped and that he had started back for his garage. Some question is made as to his driving up through Cherry street as not the most direct route from the place in question to the west side where the garage was situated, but the testimony of Hartnett is that Cherry and Water streets run parallel, that Cherry street is west of Water street. “ Q. And a person who wanted to make from the east side over to the west side would go up through Water street to Catherine street and then turn into Cherry street and he would be going toward the west side, wouldn’t he? A. Well, yes.” It is true that Cherry street runs in a general direction northeast and southwest. But Cherry street runs up towards the bridge where there is an opening up through Canal street which is a broad street passing over to the west side of the city. It is not shown that the chauffeur had any purpose in going up Cherry street, other than to go to the garage. The chauffeur swears that after striking the boy he stopped and someone told him: “ You had better keep going, Johnny, or you will be in dutch.” He was then asked if he did keep on going and he answered that he did. “ Kept right on going to the garage? A. Yes, sir. Q. That is where you were going when this accident happened, wasn’t it? A. Yes, sir.” It *35is true that the chauffeur afterwards swears that he was not going to the garage at this time, but the jury might well have understood him to mean that he was not going to the garage by the most direct route from the ferry. He is not shown to have intended to make any other stops, and his direction to the boys to get off the car three times, at least, shows that he had ended his excursion for their pleasure. These facts, in view of the presumption of law that a servant in charge of his master’s automobile is engaged in his master’s business is sufficient to carry this case to the jury and upon which this verdict may rest.
In view of the decision of the Court of Appeals in Riley v. Standard Oil Co. (231 N. Y. 301), the latest decision of the Court of Appeals, we feel bound to hold that the question of the defendants’ control of this car at the time of the accident was a question for the jury. In that case it was so held, even though the chauffeur’s excursion for his private purpose was not yet ended. It is true in the case cited that the chauffeur had a load which he was required to deliver at the owner’s place of business. In the case at bar he had the owner’s automobile that he was required to deliver at the garage. The fact that in the Riley case he also had a load which he was required to deliver bears, as I view it, upon the question of fact which the jury is to determine, rather than upon a question of law, as to whether the truck was, at the time, in the control of the master. In this case, however, where the facts are such that the jury may well have found that the chauffeur had started for the garage at the time of the accident, where he was in duty bound to take the automobile, the court was not authorized to hold as matter of law that the chauffeur was not engaged in the master’s business at the time of the happening of the accident.
The judgment and order should be affirmed, with costs.
Laughlin and Merrell, JJ., concur; Clarke, P. J., and Greenbaum, J., dissent.