App. Div. 56] First Department, May, 1921. The plaintiff, in an action wherein he demanded judgment for the sum of $68,000, obtained a warrant of attachment which was levied on certain stock of the defendant in certain corporations which the defendant claims to be of the value of $100,000. The action was tried and resulted in a judgment for the plaintiff in the sum of $16,260.43. The defendant has appealed from this judgment and filed an undertaking by a surety company which provides that if the appeal is dismissed or the judgment affirmed the surety company will pay to the plaintiff the amount of the judgment and any damages sustained by him not to exceed $500. Thereupon the defendant made a motion to discharge the attachment, relying upon the final sentence of section 688 of the Code of Civil Procedure. The motion was at first granted, but on reargument was denied by the justice at Special Term. Prior to 1906 section 687 of the Code of Civil Procedure provided that "The defendant may, at any time after he has appeared in the action, and before final judgment, apply to the judge who granted the warrant, or to the court for an order to discharge the attachment, as to the whole or a part of the property attached;" and section 688 ended with the sentence of which the concluding words are appraised value of that portion." (Laws of 1876, chap. 448, § 687; Id. § 688, as amd. by Laws of 1877, chap. 416, § 1, subd. 149.) Section 1311 of the Code of Civil Procedure provided that where the security given upon an appeal taken from a final judgment of the Supreme Court or certain lower courts is equal to that required to perfect an appeal to the Court of Appeals and to stay execution of the judgment the court may, in its discretion, make an order discharging a levy by execution upon personal property; but also expressly provided: "But this section does not authorize the discharge of a levy, made by virtue of a warrant of attachment." There was, therefore, no provision in the Code of Civil Procedure for the discharge of an attachment after final judgment. If the levy of the attachment was not discharged prior to judgment, the property levied upon by the attachment would be held subject thereto, although the undertaking was filed to perfect the appeal and stay the execution; and if the warrant was discharged before First Department, May, 1921. [Vol. 197 judgment by giving an undertaking, the sureties were not relieved by the giving of the undertaking to perfect the appeal and stay execution. In 1906 the Legislature amended section 687 by striking out the words "and before final judgment" (Laws of 1906, chap. 507), and section 688 by adding the words: "Upon such application being made after final judgment, the defendant must give the security required to perfect an appeal to the Court of Appeals from a final judgment, of the same amount or to the same effect, and to stay the execution thereof " (Laws of 1906, chap. 508). Section 1311 was not amended, except as it had been theretofore amended in a way not here material. (See Laws of 1895, chap. 946; Laws of 1899, chap. 215.) If we should adopt the theory of the appellant we would authorize the discharge of the levy of the attachment upon the filing of the undertaking in the form and to the effect of that required to perfect an appeal to the Court of Appeals and stay the execution, which section 1311 says is not authorized. It is a well-settled rule of statutory construction that all parts of a statute must be read together and such construction given, if possible, as will render the different provisions harmonious and effective. After the amendments of 1906 an application to discharge an attachment could be made at any time after the defendant appeared before or after final judgment. Section 688 states that " upon such an application," i. e., upon an application made at any time after the defendant had appeared, the defendant must give an undertaking to pay to the plaintiff the amount of any judgment which may be recovered in the action. If the application is made after judgment there is an additional, and not a substitutional requirement that the defendant must also give the undertaking to perfect the appeal and stay the execution. Any other construction leads to this absurdity, that if the application is made before judgment, and the undertaking given, the sureties remain liable, even if the judgment be in favor of the defendant and be reversed, on appeal and a new trial granted, and must pay any judgment which is finally recovered in the action (Youngman v. Fidelity & Deposit Co., 87 Misc. Rep. 456); whereas, if the application is made after judgment in favor of the plain App. Div. 59] First Department, May, 1921. tiff, the attachment could be discharged by merely filing an undertaking to pay if the judgment is affirmed or the appeal dismissed, and should the judgment be reversed and a new trial granted and a second judgment recovered for the plaintiff, the property attached would have been released and nothing would stand as security therefor. It would be unreasonable to suppose that the Legislature intended that a creditor whose claim had been reduced to judgment should have less security than one whose claim was only asserted in an action. The order should, therefore, be affirmed, with ten dollars costs and disbursements. CLARKE, P. J., DOWLING, SMITH and GREENBAUM, JJ., concur. Order affirmed, with ten dollars costs and disbursements. JAMES P. DONNELLY, as Administrator, etc., of GEORGE F. DONNELLY, Deceased, Respondent, v. THOMAS B. YUILLE, Appellant. First Department, May 27, 1921. Motor vehicles action for death of child owner not liable where accident occurred while chauffeur was using automobile for his own purposes erroneous charge as to whether chauffeur engaged in master's business. The defendant, the owner of an automobile, was not liable for the death of plaintiff's intestate, a child between twelve and thirteen years of age, where it appeared that on the day of the accident the defendant's chauffeur, after driving the defendant from his place of business to his home, drove the automobile to the garage where he was informed that he was wanted at his home, and that he then proceeded from the garage to his own home and while turning the car around in the street on which he lived, he ran over the plaintiff's intestate, causing his death. It was error for the court to so charge the jury that it might find that at the time of the accident the chauffeur was engaged in the business of the defendant, for there was nothing in the evidence that would warrant the inference that the use of the machine would in any way facilitate or expedite his master's service. First Department, May, 1921. [Vol. 197 APPEAL by the defendant, Thomas B. Yuille, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 13th day of May, 1920, on the verdict of a jury for $6,000, and also from an order entered in said clerk's office on the 19th day of May, 1920, denying defendant's motion to set aside the verdict and for a new trial made upon the minutes. Clarence S. Zipp of counsel [Benjamin C. Loder, attorney], for the appellant. Arthur A. Henning, for the respondent. PAGE, J.: This is a statutory action (Code Civ. Proc. § 1902 et seq.) brought by an administrator to recover damages for negligently causing the death of a boy between twelve and thirteen years of age. There is very little conflict in the evidence as to the facts in this case. Briefly stated, they are as follows: The defendant was the owner of a Cadillac limousine automobile, and John J. Nash was in his employ as chauffeur. On the day in question the chauffeur drove the defendant from his place of business to his home at the corner of Fifty-fifth street and Park avenue, where they arrived at about sixthirty P. M. Nash then drove to the garage at Park avenue and Fifty-ninth street, where he was informed that there was a message on the bulletin board for him. He left the car on the floor of the garage and went into the office and read, "Nash, come home," or "Nash, you are wanted home." He then entered the car, backed out of the garage and proceeded to his home, which was at 443 East One Hundred and Thirty-fourth street in the borough of The Bronx, arriving there between seven-twenty and seven-thirty. There were boys, among whom was the plaintiff's intestate, playing games upon the sidewalk. As they were about to cross from the south to the north side of the street, Nash drove into the block. They waited for him to pass, but he turned his car around. The street being narrow, he had to back and start ahead, back again and start ahead. When he had done this, the boys, thinking he had come to a stationary position, App. Div. 59] First Department, May, 1921. crossed over behind him within a short distance of the rear of the automobile. All had crossed safely but two. When plaintiff's intestate was behind the car, the chauffeur suddenly backed up without warning, according to plaintiff's witnesses. The boy caught hold of one of the extra wheels carried on the back of the car, and attempted to pull himself up. The wheel, being loose, swung around with him, and he was thrown beneath one of the rear wheels and the car stopped, resting on his body. A postman called to the chauffeur and he started the car forward, the boy got up, took a few steps and fell, and shortly died. Upon this evidence we would not interfere with the verdict of the jury either in the finding of the fact of the chauffeur's negligence or the freedom from contributory negligence on the part of the plaintiff's intestate. Upon the issue of the chauffeur at that time being engaged in the defendant's business or acting within the scope of his employment, I am of opinion that the verdict is not only contrary to the weight of the evidence, but contrary to the law applicable to the case. Nash was going to his home on an errand of his own, in no manner connected with his employer's business or affairs. His testimony was corroborated by the uncontroverted testimony of several other witnesses. When interrogated by a clerk in the employ of plaintiff's attorney shortly after the accident, he stated that he had permission to use the car to go home when he worked nights. Giving this testimony full credence, still under the rule laid down in Reilly v. Connable (214 N. Y. 586, 590), which case in this regard is very similar to the case under consideration, the defendant could not be held liable. The court said: "The fact that the chauffeur caused the injuries during the period of his employment does not make the defendant liable. If the employee in doing any act breaks the connection between himself and his employer, the act done under those circumstances is not that of the employer. Nor would the defendant's permission or acquiescence in the use by his chauffeur for the personal business or pleasure of the chauffuer make the defendant liable." The court charged the jury: "You have a right to ask yourselves the question, if the chauffeur were dismissed temporarily at half-past six and directed to return at half-past |