Elliott v. Flushing Sand & Stone Co.

In an action to recover damages for wrongful death, the impleaded defendant and the plaintiff appeal from an order granting reargument and on reargument denying the motion of the impleaded defendant to vacate an order granting the impleader. Order affirmed, with $10 costs and disbursements. The original defendant was the owner of the truck involved in the accident. That defendant rented the truck and furnished the chauffeur to the impleaded defendant. Whether the chauffeur was at the time of the accident the servant of the original defendant or of the impleaded defendant is a question of fact. The circumstance that the chauffeur was being paid by the original defendant does not prevent a finding that he was at the time of the accident the servant of the impleaded defendant. (Wyllie v. Palmer, 137 N. Y. 248; Higgins V. Western Union Telegraph Go., 156 N. Y. 75; Osborg v. Hoffman, 252 App. Div. 587, affd. 280 N. Y. 523.) The original defendant may be held liable whether the chauffeur was or was not "its servant at the time of the accident. (Irwin v. Klein, 271 N. Y. 477.) If the original defendant is held liable solely as the owner of the truck, that is, under section 59 of the Vehicle and Traffic Law, it is entitled to indemnity from the impleaded defendant if it be found that the chauffeur was the servant of the impleaded defendant at the time of the accident. Hagarty, Acting P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.