Opinion
May, 1933.
Judgment reversed on the law and the facts and a new trial granted, costs to appellant to abide the event. The plaintiff's right to recover is based upon the alleged invitation or request of Doherty to ride on the bucket for the purpose of showing the appellant's employees where the hopper was to go. The testimony established without contradiction that the appellant had no obligation to do other than to deliver the hopper to the floor from which it had been taken away for repair. The duty of fixing the hopper in position to work was solely that of the plaintiff and his fellow workmen. It was obviously not at all essential for plaintiff to ride to a particular floor upon which the hopper was to be left by the appellant's servants. That information, as to the floor to which the hopper was to go, could have been given by plaintiff to the appellant's employees who, as stated, had no obligation to set up the hopper in its position. The invitation or request claimed to have been given plaintiff by Doherty is not borne out by the weight of the evidence, and the finding of the jury thereon should have been set aside. In the circumstances, even were we to assume that Doherty invited the plaintiff to ride on the bucket, such invitation was beyond the scope of Doherty's authority and was not in furtherance of the appellant's business. Lazansky, P.J., Young, Kapper, Scudder and Tompkins, JJ., concur.