We think that this interpretation of the amendment is sustained by one decision of this court, rendered, however, without opinion. In Svendsen v. McWilliams (214 N. Y. 621) we considered a judgment obtained by the plaintiff for damages caused by the negligence of a superintendent in the performance of an act which was not one of superintendence, but just as thoroughly a detail of work ordinarily to be performed by a fellow-servant as was the act involved in this action. The accident occurred after the passage of the amendment of 1910, and the recovery which the plaintiff secured at the Trial Term necessarily involved the same construction of that amendment which is now being urged by the plaintiff. The question of the employers' liability on that theory was specifically considered at the Appellate Division and was raised by the briefs in this court, and our affirmance of the judgment which had been recovered necessarily adopted that interpretation of the amendment which is now relied on by the plaintiff to sustain his recovery.

I think, therefore, that the judgment appealed from should be affirmed, with costs.

6. WHEN PERSON IS INTRUSTED WITH SUPERINTENDENCE

The operator of a stamping machine is intrusted with power of superintendence if an assistant is told to take orders from such person.

COCCHIA V. RAPID ADDRESSING MACHINE Co., 174 App. Div. 313 (July 26, 1918), abstract [aff'd without opinion, 223 N. Y. 628 (April 5, 1918) ].

A boy, who had been told to assist girls operating stamping machines, was injured while obeying such orders because the operator started the machine while plaintiff's hand was under the die. Action was brought under section 200, subd. 2 of the Labor Law which gives a cause for action against an employer to an employee who in the exercise of due care is injured because of "the negligence of any person in the service of the employer instrusted with any superintendence or by reason of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee." At the close of the plaintiff's case, his complaint was dismissed.

The Appellate Division reversed the lower court and ordered a new trial. Justice Rich who wrote the opinion, stated in part, as follows:

"I think the evidence was sufficient to warrant the jury in finding that Grace Karl (the machine operator) was a person entrusted with authority to direct, control and command the plaintiff in the performance of his duties, within the meaning of those words as used in the statute, and that the accident was caused by her negligence, and that the plaintiff was in the exercise of due care and diligence at the time he was injured."

7. FAILURE TO MAINTAIN "WAY" AFTER BUSINESS ON FLOOR IS CONCLUDED

MARAGLIND V. COMES, 90 Misc. 297, abstract.

A laborer was injured by falling from the first floor to the basement of a building then under construction. At the time plaintiff fell, the defendant, his employer, was no longer conducting a business on that floor and was under no obligation to maintain a "way" within the meaning of section 200 of the Labor Law. The court held, therefore, that the defendant was not required to maintain a flooring over the basement and consequently not liable for the injury sustained by the workmen.

8. NEGLECT OF CONTRACTOR

Plaintiff's intestate was employed by a contractor to varnish beer vats. While thus engaged he inhaled poisonous fumes, resulting fatally. By the terms of the agreement between the owner and the contractor, the latter agreed to furnish all instrumentalities with which to do the work. There was no defect in the owner's premises. No blower or other contrivance was furnished to earry off the fumes from the vats. Holding that the default, if any, was that of the contractor, the court said:

HESS V. BERNHEIMER & SCHWARTZ PILSENER BREWING Co., 219 N. Y. 415 (Dec. 28, 1916), in part.

Lutz, the contractor, was bound by the contract to furnish all the instrumentalities by which the work was to be done except the varnish and certain electric heaters; there was no defect in the vat; it was not unsafe qua vat; the work contracted for was not necessarily dangerous; the danger arose from the method in which the work was done; the defect was in the contractor's outfit and not in the plant of the appellant. So far as the case proceeds on the theory that the lack of blowers was a defect in the appellant's plant we think the plaintiff must fail.

XVII. GENERAL OR SPECIAL EMPLOYER

LIABILITY AS BETWEEN

In an action under the Labor Law one of the questions at issue was whether plaintiff was an employee of the defendant as a" mechanic, workingman or laborer who works for another for hire." At the time of the accident defendant was engaged in constructing a section of the subway in New York City. Defendant's practice was to hire teams to haul steel from barges to the place of work. On a certain date defendant hired four teams, trucks and drivers for hauling from one, C, who was engaged in the general trucking business. Plaintiff was one of the drivers sent to perform such work. It appeared that after the drivers and trucks were sent to the defendant, the latter's foreman took charge of them, gave them orders, and exercised the power to discharge any or all of them. The defendant paid C $7 a day for each team, truck and driver. The court held that plaintiff was an employee, saying:

GREEN V. MCMULLEN, SNARE & TRIEST, INC., 177 App. Div. 771 (May 4, 1917) in part.

It is quite obvious that the plaintiff was employed by the defendant, although he received no wages directly from it. But he did receive wages for the work he performed for the defendant, and the defendant was the source of those wages. Is it essential that he should receive his wages directly from the defendant in order to make him an employee for hire within the intent of the Labor Law? To hold that would make the existence of the relation of employer and employee depend not upon whether the plaintiff was working for hire, but solely upon the question of who paid him the hire, a result which, we think, the Legislature never intended. . . . We are of the opinion that the Labor Law has extended the liability of the master arising out of the relation created by this form of hiring so as to protect servant and employee against the delinquencies of the master enumerated therein.

XVIII. UNLAWFUL DETENTION OF ILL EMPLOYEE.

An employee acting as saleswoman for the defendant in its veil department became violently ill while at work. She asked for a pass to get her hat and coat, it being a rule of the defendant that hats, coats, and other street apparel should be placed in a locker on reporting for duty. Permission to get her coat, etc., was refused and she was compelled to remain in the store for over two hours on the ground that no passes could be issued, prior to closing time, before the holiday season was over. When finally allowed to go home she was suffering from chills, the weather was cold, and she was compelled to travel five miles to her residence. On arriving home her condition became worse, and despite medical aid, she died six days later. While it was alleged that deceased's death was caused solely by the act of the defendant in compelling her to remain two hours in the store, the court was of the opinion that such allegation would be difficult to prove, but that, in any event, the matter should not be determined on a demurrer. As to the liability of the defendant for restraining the deceased from going home, the court spoke as follows:

KEEFE V. STRAUS, 91 Misc. 627 (Sept., 1915), in part.

A more serious question arises as to whether the act of the defendants in refusing to permit the sick woman to obtain her wearing apparel from the locker so that she might go home was a wrongful act in a legal sense, and such as to create under the circumstances a cause of action. The general rule governing actions brought to recover for death caused by wrongful act is stated as follows in 13 Cyc. 318: "In most cases the question of the right to recover for the death of a person by wrongful act is merely a question of negligence, and is to be governed by the same principles and considerations of negligence where the results are less serious." The best definition of negligence is that given by Judge Cooley in his work on Torts: "The failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury." Unquestionably the defendants owed a duty to observe some degree of care for their employee while she was engaged in the performance of her duties to them. What precaution did these admitted circumstances justly demand of the defendants? If the deceased had been working on a machine and had cut off her arm in the presence of the defendants, and they had stood by and allowed her to bleed to death, no one would question their liability. Here there was more than a mere omission. The deceased was shaking with a chill and vomiting when she asked the defend

ants for the pass to get her apparel so that she might obtain 'immediate medical attention. Her illness and distress were obvious. Yet the defendants, it is alleged, and for the purposes of the demurrer it must be deemed to be true, however incredible, actually interfered with her leaving and obtaining medical attention, as a result of which she was detained in the store in this condition for over two hours. The suggestions in the brief for the defendants that the deceased might have gone home without her hat and coat and other wearing apparel that was kept by them under lock and key, or that she might have borrowed a coat, or might have bought a coat in the store, do not appeal to the court and will hardly be repeated to the jury. The deceased was, in effect, refused permission to leave, and the demurrer admits that by defendants' refusal to give the deceased a pass she was forced to remain. That this was not only an omission of that degree of care which circumstances justly demanded, but amounted to a positive wrongful act is, in my opinion, beyond question. A very different situation may be disclosed upon the trial, but to hold that upon these conceded facts there is no cause of action would be a reproach to justice. The motion for judgment is granted, with ten dollars costs, with leave to withdraw the demurrer and answer within ten days on payment of said costs."