Touris v. Brewster & Co.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellants to abide event, upon the ground that the questions as to whether defendant’s employee in charge of the automobile was acting within the scope of his employment at the time he left the automobile at the point of the accident, and whether it was negligently so left, were questions for the jury. Present — Clarke, P. J., Laughlin, Dowling, Smith and Page, JJ.; Clarke, P. J., and Dowling, J., dissenting.

I dissent and vote to affirm, on the gronud that, on the undisputed facts of the ease, the employee had broken the connections between himself and his employer and was not performing any act within the scope of his employment which caused the accident or was responsible for its happening. (Reilly v. Connable, 214 N. Y. 586; O’Brien v. Stern Brothers, 223 id. 290.) Clarke, P. J., concurs. Judgment reversed and new trial ordered, with costs to appellants to abide event.