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and 118 New York State Reporter None of the exceptions require a reversal of the judgment. Emanuel Popper was the agent of the defendant, and not the agent of the plaintiffs.

Judgment and order appealed from are affirmed, with costs. All concur.

BERMAN et al. v. SCHULTZ.
(Supreme Court, Appellate Term. June 22, 1903.)

1. HIGHWAY8-AUTOMOBILES-COLLISION-EVIDENCE.

Where there was evidence that defendant's automobile was started by the willful act of two boys who were playing about it while it was standing in the street while the chaffeur was delivering mineral water, a finding of the trial judge that he did not believe the latter's evidence that before leaving the automobile he threw off the current, pulling back the lever, and applied the brake, and that if he had done such things, the damage could not have been inflicted, was not supported by the evi

dence. 2. SAME-DUTY OF CHAFFEUR.

It is not the duty of a chaffeur, before leaving an automobile in the street, while temporarily absent, delivering goods in an adjoining house, to chain the machine to a post, or in some other manner fasten it so that

it would be impossible for it to be started by the act of a third person. 3. SAME-PROXIMATE CAUSE.

Where an automobile left in a street by the chaffeur after having turned off the power and applied the brake was started by the willful act of two small boys, and thereupon collided with plaintiff's wagon, the act of the boys was the proximate cause of the injury, and the owner was therefore not liable.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by David Berman and another against Carl H. Schultz. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Hansen, Zinsser & Power, for appellant.
I. Cohn, for respondents.

GILDERSLEEVE, J. The action is for injuries to personal property. Plaintiffs' horse and wagon were left standing at the southeast corner of Ninety-Eighth street and Third avenue. The defendant's automobile was left unattend-d in front of No. 114 East NinetyEighth street while the operator went in the building to deliver mineral water. The operator, an experienced chaffeur, testified that before going away from his machine he threw off the current, put on the brake, and threw off the switch, so that the machine could not start of itself. It appears from the testimony that some boys, during the absence of the operator, played about the automobile. One got onto the machine, lifted the cover under the driver's seat, where the apparatus was, pulled something, rang the bell, and then the machine started off, and struck the plaintiffs' horse and wagon. On the former trial, the justice gave judgment for the plaintiffs. This was reversed by the Appellate Term (see Berman v. Schultz, 40 Misc. Rep. 212, 81 N. Y. Supp. 647) on the ground that the proximate cause of the collision was the act of the boys, which, being the intervening act of third parties, exempted defendant from liability. On the new trial, upon practically the same testimony, the justice gave judgment for the plaintiffs.

The judgment is based upon the conclusion of the learned trial justice that the operator of the machine did not exercise due and proper care, before leaving the machine, to guard against accident; that it was not left “in a proper condition to guard against the possibility of its running away." The following statement appears in the decision:

"I do not believe that he [chaffeur) did what he testified to with reference to throwing off the curent, pulling back the lever, and applying the brake --more especially the latter. If he had done all these things, the damage inflicted could not have been done."

It does not necessarily follow that, had all these things been done, the starting of the machine could not have been brought about in the manner claimed by the defendant. There is no support in the evidence for this conclusion of the learned trial justice. It was not the duty of the defendant to chain the machine to a post, or in some way fasten it so that it was impossible for it to be started by the act of a third party. The law did not impose upon the defendant a degree of care that made the starting of the machine impossible. It was the duty of the defendant to exercise such care as a person of ordinary prudence would use under the circumstances. The precautions for safety to which the learned trial justice referred were “throwing off the power, putting on the brake, and throwing off the switch." These things the chaffeur testified he did. Reverse action of any third party in respect to these three things would necessarily start the machine. If the chaffeur had omitted any of them before leaving the machine, the task of a mischievous intruder was simply made easier. The evidence precludes the theory that the machine started of its own accord. The testimony that some boy or boys from the street did something to the machine that set it in inotion is given by two eyewitnesses, both strangers to the parties to this action and strictly disinterested. The acts of the boys were willful, and not negligent. It cannot, therefore, truly be said that the chaffeur co-operated in an act directly causing the injury, and that upon this theory the defendant must be held liable. The testimony upon the trial now under review does not change the situation presented at the previous trial. The facts are substantially the same. The plaintiffs failed to sustain the burden of showing that the defendant was guilty of an act of negligence that was the proximate cause of the injury. It was clearly an intervening act of a third party, in no way connected with the defendant, that set the machine in motion and caused the injury. The rule is well settled that, where the proximate cause of the injury complained of is the intervening act of a third party, the defendant is not liable. Mars v. D. & H. R. Co., 54 Hun, 625, 8 N. Y. Supp. 107; Thompson v. Plath, 44 App.

and 118 New York State Reporter Div. 291, 60 N. Y. Supp. 621; Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216.

It follows that the judgment must be again reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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(Supreme Court, Appellate Division, First Department. Norember 6, 1903.) 1. ORDER-CONCLUSIVENESS.

An order overruling a motion to set aside a subpæna, and requiring the witness to attend and produce books, is conclusive, on appeal from a subsequent order to produce and deliver the books, that subpæna was properly issued, and that the witness must obey appeal from the first

order having been abandoned. 2. WITNESSES-DELIVERY OF Books.

An order directing a witness to deliver books of account to a commissioner to take testimony is improper, where they are the books of a concern carrying on business, and are not to be inspected or required for general examination, but are to be used on examination of a witness, to aid him in answering questions, or to be made original evidence in con

nection with his examination or after identification, Appeal from Special Term, New York County.

In the matter of Frank E. Randall. From an order directing him to produce and deliver books to a commissioner to take testimony, he appeals. Modified.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

Julius F. Workum, for appellant.
Frank E. Blackwell, for respondent.

PATTERSON, J. By the order appealed from, Frank E. Randall, a witness under examination before a commissioner appointed by the Court of Common Pleas of Montgomery county, Ohio, to take testimony in an action pending therein, was required to produce and deliver to the commissioners certain books which were in his possession during his examination, and all books which were called for by a subpæna duces tecum issued by a justice of the Supreme Court of New York, and which required the attendance of the witness before the commissioner, and the production of such books. The order also provided that the commissioner must not permit such books to be used by the plaintiff's counsel, except for the legitimate purpose of the examination of a witness. Mr. Randall was under examination before the commissioner as a witness subpænaed by the plaintiff. He had refused to answer certain questions which had been put to him, and the motion was made, substantially, for the purpose of compelling him to answer such questions, as well as to produce books. Some time prior to the making of the motion which resulted in the order now under review, a subpæna duces tecum had been served upon Mr. Randall, and motion had been made to vacate and set it aside. That motion was denied by Mr. Justice Bischoff, and the witness was required to attend before the commissioner pursuant to the subpæna,

and to produce the books, papers, and records before such commissioner. It was further provided that the original books called for by the subpoena "need not be deposited with the commissioner, unless required by the court.” That order was appealed from, but the appeal was abandoned. Pursuant to its provisions, the witness attended before the commissioner and produced certain books and papers, but he refused to identify them or to give any testimony respecting them. Thereupon the motion was made which resulted in the order from which this appeal is taken.

The appellant now insists that the subpæna was originally improperly issued, and that the witness should not be required to obey it; but all those matters were disposed of on the motion to vacate the subpæna, and the appellant, having abandoned its appeal from that order, is concluded by its terms. The present appeal is only from that part of the order under review which provides as follows:

"Ordered, that the said Frank E. Randall produce and deliver to William C. Timm, the commissioner in the suit now pending in the Court of Common Pleas, Montgomery county, Ohio, in which William E. Strong and others are plaintiff's, and the Western Gas & Fuel Company and others are defendants, the books which were in his possession before said commissioner during his examination on the 21st and 220 days of May, 1903, together with all other books in his possession called for by the said subpoena of this court and the said order of Mr. Justice Bischoff."

The only question now before us relates to the propriety of that provision of the order which requires the deposit of the books with the commissioner. They are the books of the Western Gas & Fuel Company, a corporation, which is a going concern, carrying on business in the city of New York. That those books must be produced by the witness, when required by a subpæna, has been adjudged; but we are not aware of any authority which requires that they be transferred from the possession of the corporation to which they belong, and deposited with the commissioner. They are not to be inspected, nor are they to be required for general examination. They are to be used on the examination of some witness, to aid him to answer the questions which may be propounded to him upon his examination, or to be made original evidence in connection with the examination of some witness, or after identification by a witness. If the person producing the books in obedience to a subpæna refuses to answer questions passed upon and allowed by the commissioner, and under such circumstances refuses to identify the books or the entries therein which are material to the case of the examining party, a remedy is afforded by law. It is not necessary for any legitimate purpose that the books should be deposited and left with the commissioner. They have been produced in obedience to the subpoena; they are, in legal effect, before the commissioner for all legitimate purposes; and the witness or the appellant would be at great peril in refusing to bring them physically before the commissioner when required, and in obedience to a subpæna.

We do not see that a case has been made out requiring a deposit of the books; and that much of the order should be reversed, with $10 costs and disbursements of the appeal, and the motion so far denied. with $10 costs. All concur.

and 118 New York State Reporter

THURN V. WILLIAMS et al.

(Supreme Court, Appellate Term. June 22, 1903.) 1. MASTER AND SERVANT-NEGLIGENCE-RESPONDEAT SUPERIOR

Defendant, while driving his own horse and a wagon borrowed from his codefendant, negligently collided with plaintiff's horse and wagon. At the time, defendant was not in the employment of the codefendant, but was driving on his own account. Held not to show the relation of master and servant, and therefore the codefendant was not responsible for the accident, notwithstanding the evidence that the codefendant was defendant's son-in-law; that, after the collision, defendant stated that the horse or wagon, or both, belonged to the codefendant; and that the codefendant, the day after the accident, said he was sorry that it had happened, and that he would settle it in a decent way.

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Frank Thurn against James Williams, impleaded with Fred H. Pontin. From a judgment for plaintiff, defendant Williams appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

John Goode, for appellant.
Daniel M. Van Cott, for respondent.

MacLEAN, J. In this action, to recover damages for negligently causing the death of a horse and damaging a wagon and harness, the property of the plaintiff, the liability of the defendant Williams rests, if at all, upon the rule of respondeat superior, for he was not personally present when the collision of the teams driven by the driver of the plaintiff and the defendant Pontin occurred. “But the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong at the time and in respect to very transaction out of which the injury arose." Higgins v. Western Union Telegraph Co., 156 N. Y. 75, 78, 50 N. E. 500, 66 Am. St. Rep. 537. That the defendant Williams was the son-in-law of his codefendant, or that after the collision the latter stated that the horse or wagon, or both, belonged to his son-in-law, or that the son-in-law, the day after the accident, said, “I am very sorry that it happened, and if he wouldn't ask too much, I would settle it in a decent way,” even if in particular undenied, was clearly insufficient to bring him within the application of the rule, in the face of the sworn testimony of the two defendants, not otherwise impeached or contradicted, that Pontin was the owner of the horse, had borrowed the wagon, and at the time of the accident was not in the employment of his son-in-law, but was driving on his own account, favoring another. The judgment against the defendant Williams must therefore be reversed, and a new trial ordered, with costs to abide the event.

Judgment against defendant Williams reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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