Second Department, June, 1921. [Vol. 197 court thereafter, on December 7, 1920, upon due notice to all parties, made an order accordingly confirming the sale. The Title Guarantee and Trust Company thereupon signified its willingness to pass the title as thus corrected. Apparently at first the appellant's attorneys were disposed to accept the title and complete the purchase as indicated by their letter of December 11, 1920. Later, perhaps from abundant caution, they took the opposite view, and the orders appealed from resulted. The appellant's contention here is that the interlocutory judgment when entered and the sale when made were ineffective as to that infant defendant, and that the court could not subsequently make them effective, but could proceed only by entering a new interlocutory judgment under which a new sale could be had. The contrary to this appears to have been expressly held by our former General Term in Rice v. Barrett (35 Hun, 366). While that decision was reversed by the Court of Appeals (99 N. Y. 403), the reversal was solely upon the ground that there had been a long delay in taking the proceedings to cure the defect, and that those proceedings had not been taken, as evidently they were here, with the acquiescence of the purchaser. Here it is plain that the plaintiff proceeded at once to cure the defect. The cases cited by the learned counsel for the appellant rest upon the naked proposition that the failure to comply with the said requirement of section 426 prevented the court from having jurisdiction over the infant defendant. Neither of them dealt with the effect of any such attempt to cure the defect. I advise, therefore, that the orders appealed from be each affirmed, with ten dollars costs and disbursements. BLACKMAR, P. J., RICH, KELLY and MANNING, JJ., concur. Orders of the County Court of Queens county affirmed, with ten dollars costs and disbursements. App. Div. 371] Second Department, June, 1921. ANDREW WAGNER, as Administrator, etc., of PAUL WAGNER, Second Department, June 24, 1921. Master and servant owner of motor trucks hired by general contractor to cart dirt at given rate per truck per day was independent contractor and responsible for negligence of driver of truck rented from third party — general contractor not responsible — fact that trucks bore name of general contractor immaterial. A motor trucking company which was engaged by a general contractor to cart dirt at a given rate per day for each truck was an independent contractor and is responsible for the negligence of a driver of a truck hired by it with driver from a third party over which driver it had general control at the time of the accident, but the general contractor is not responsible for such negligence. The fact that the motor trucks bore the name of the general contractor and that the drivers thereof wore badges marked with the initials of the general contractor does not make it liable for the negligence of a driver, since the general contractor was engaged in constructing an army base for the United States government which permitted only the employees of the contractor and its subcontractors to be admitted to the place where the work was going on. APPEAL by the plaintiff, Andrew Wagner, as administrator, etc., from that part of a judgment of the Supreme Court in favor of the defendant Hagerty Motor Trucking Company, entered in the office of the clerk of the county of Kings on the 21st day of December, 1920, upon the verdict of a jury, and from that part of said judgment entered upon an order setting aside a verdict in favor of plaintiff and against the defendant Rodgers & Hagerty, Inc., for $15,000, and also from that part of an order entered in said clerk's office on the 9th day of December, 1920, directing that a general verdict be entered in favor of the defendant Hagerty Motor Trucking Company, and from that part of said order setting aside a verdict in favor of the plaintiff and against the defendant Rodgers & Hagerty, Inc., and dismissing plaintiff's complaint. Second Department, June, 1921. George F. Hickey, for the appellant. [Vol. 197 Louis Cohn, for the respondent Hagerty Motor Trucking Company. Walter L. Glenney [Bertrand L. Pettigrew with him on the brief], for the respondent Rodgers & Hagerty, Inc. JAYCOX, J.: The Turner Construction Company was engaged in the erection of an army supply base in the borough of Brooklyn. This work was done under a contract with the United States government. The respondent Rodgers & Hagerty, Inc., was doing the work of excavation under a subcontract with the Turner Construction Company. The Hagerty Motor Trucking Company, Inc., had an agreement with Rodgers & Hagerty, Inc., whereby it (the Hagerty Motor Trucking Company, Inc.) agreed to furnish trucks for the disposition of excavated material at thirty dollars each per day ten hours to constitute a day's work, overtime to be paid at the rate of three dollars an hour. Rodgers & Hagerty, Inc., had no trucks and did not attempt to dispose of any of the material in any way except by means of the trucks furnished by the Hagerty Motor Trucking Company, Inc. The Hagerty Motor Trucking Company, Inc., did not have sufficient trucks to take care of all of the material excavated. It, in turn, hired trucks with drivers from the Motor Truck Renting Corporation, and one of the trucks thus rented ran over and killed the plaintiff's intestate. The jury has found that the driver of this truck was guilty of negligence and that the plaintiff's intestate was free from contributory negligence. The question as to whose servant the driver of the truck was at the time of the happening of the accident must necessarily be determined in this action. Upon the first trial of the action the court dismissed the complaint as against the Hagerty Motor Trucking Company, Inc., and the Motor Truck Renting Corporation, and the jury rendered a verdict against Rodgers & Hagerty, Inc. The plaintiff appealed from the dismissal of the complaint as against the Hagerty Motor Trucking App. Div. 371] Second Department, June, 1921. Company, Inc., but did not appeal from the dismissal of the complaint as to the Motor Truck Renting Corporation. Rodgers & Hagerty, Inc., appealed from the judgment against it. The judgment against Rodgers & Hagerty, Inc., was reversed, as was also the dismissal of the complaint against the Hagerty Motor Trucking Company, Inc. (Wagner v. Rodgers & Hagerty, Inc., 193 App. Div. 912.) Upon the retrial the court submitted to the jury the following questions and took a special verdict thereon: "Q. Was there negligence on the part of Delahanty, the driver of the automobile truck?" "Q. Was there any negligence on the part of the deceased that contributed to the accident?" 'Q. Whose servant was Delahanty, the driver of the automobile truck, at the time of the accident?" The jury answered the first question in the affirmative, the second in the negative, and the third," Rodgers & Hagerty, Inc.," and rendered a general verdict against that defendant for the sum of $15,000. The court, upon the motion of the defendant Rodgers & Hagerty, Inc., set aside the general verdict and dismissed the complaint. Judgment was thereupon entered by order of the court in favor of the Hagerty Motor Trucking Company, Inc., in accordance with the special verdict, and in favor of Rodgers & Hagerty, Inc., dismissing the plaintiff's complaint, with costs in both instances. The jury having found that the driver of the automobile truck was guilty of negligence which caused the plaintiff's intestate's death, and that such intestate was free from contributory negligence, it seems to me clear that the plaintiff is entitled to recover from one of the defendants. The court has held, correctly I think, that the Motor Truck Renting Corporation was not in control of the driver at the time of the happening of the accident so as to be responsible for his negligence. Therefore, if the general employer of the driver the Motor Truck Renting Corporation - did not control the driver at the time of the happening of the accident, the question naturally arises, who did control him? This question is answered by determining in whose work the driver was engaged. In Matter of Schweitzer v. Thompson & Norris Co. (229 N. Y. 97) Judge CRANE, in the prevailing opinion, said: "It Second Department, June, 1921. [Vol. 197 is well settled that one may be in the general service of another and nevertheless with respect to particular work may be transferred with his own consent or acquiescence to the service of a third person so that he becomes the servant of that person with all the legal consequences of the new relation. (Standard Oil Co. v. Anderson, 212 U. S. 215, 220.) Difficulty frequently arises in determining when this transfer of relationship takes place. The rule was stated in this court in Hartell v. Simonson & Son Co. (218 N. Y. 345, 349) to be the following: 'A servant in the general employment of one person, who is temporarily loaned to another person to do the latter's work, becomes, for the time being, the servant of the borrower, who is liable for his negligence. But if the general employer enters into a contract to do the work of another, as an independent contractor, his servants do not become the servants of the person with whom he thus contracts, and the latter is not liable for their negligence.' The cases of Kellogg v. Church Charity Foundation of Long Island (203 N. Y. 191) and Schmedes v. Deffaa (153 App. Div. 819; 214 N. Y. 675) were cited as illustrations of the distinction." In this case it is clear that the driver of the truck was not engaged in the work of his general employer, but that he was doing the work of either the Hagerty Motor Trucking Company, Inc., or Rodgers & Hagerty, Inc. Rodgers & Hagerty, Inc., had no trucks and did no part of the removal of the excavated material. The Hagerty Motor Trucking Company, Inc., on the other hand, removed all of this material and for this purpose furnished whatever number of trucks was necessary. The amount of the work it was to do was determined by the amount of material excavated. The number of trucks it was to supply was fixed in the same way; the number was to be adequate to remove the excavated material. The Hagerty Motor Trucking Company, Inc., under this arrangement became an independent contractor. It was required to remove all of the excavated material and its pay depended upon the number of trucks engaged in that work each day. That the trucks bore the name of Rodgers & Hagerty, Inc., that the drivers wore badges marked R & H, in no wise affects this conclusion. At the time this country was engaged in the great World War and the work being done |