Waldman v. Picker Bros.

SEAMAN, J. It appears from the testimony that the defendants did not own the auto truck which caused the damage for compensation for which plaintiff sues, did not employ or pay the chauffeur; but that the truck was hired by the defendants from the Motor Renting Company for $90 a week; that the Motor Renting Company supplied the chauffeur and paid his wages, and paid for all repairs, oils, gasoline, etc., for its operation; that the defendant had no power of selection of the particular chauffeur who was to run- the truck, and from time tó time different chauffeurs were sent by the owners of the truck.for that purpose. It does not appear that the defendant exercised any authority or control over the truck or its driver, except to indicate to the driver the place where he was to go to deliver or receive goods; neither does it appear that the chauffeur had any duties to perform, except to operate the auto truck. The defendant sent with the truck two employés, who had no duties, except to load and unload the merchandise. The decisions as to the liability of parties hiring vehicles under such conditions are exceedingly close, and it- is difficult to distinguish between the facts upon which diverse judgments have been founded. Upon the authority, however, of Kellogg v. Church Charity Foundation of Long Island, 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883, and Singer v. McDermott, 30 Misc. Rep. 738, 62 N. Y. Supp. 1086, the motion to vacate and set aside the judgment will be denied. No costs.