SECOND DEPARTMENT, JUNE TERM, 1903. [Vol. 85. of Morrow, and, hence, is not liable to the plaintiffs in an action for the rent during his possession of the premises. It must be admitted that, had there been no adjudication in the Federal court, Madden would have been liable, for it has been longestablished that where a lessee assigns his whole estate without providing for any reversion to himself, there is at once created, as between his assignee and the lessor, a privity of estate which grants to the lessor an action directly against the assignee for rent. (Stewart v. Long Island R. R. Co., 102 N. Y. 601.) In particular relation to assignees for the benefit of creditors, the rule seems to be that they have an election whether or not to accept a lease so assigned without affecting their rights as to other assigned property. If he elects to accept the interest of the assignor by entering into possession, or by doing any other act which is equivalent to signifying the acceptance of the term as assignee of the lease, such an assignee will become the tenant of the premises and render himself liable for the rent. (Jermain v. Pattison, 46 Barb. 9; Smith v. Wagner, 9 Misc. Rep. 122; Journeay v. Brackley, 1 Hilt. 447; Draper v. Salisbury, 11 Misc. Rep. 573; Myers v. Hunt, 8 N. Y. St. Repr. 338.) The case at bar takes us one step beyond this proposition. The appellant's claim is that, inasmuch as the bankruptcy court has in fact said there never was an assignment to Madden, this ruie cannot be held to apply. We think, however, that the defendant was, by his possession and use of the premises, estopped from setting up that he was in possession under a void assignment. It has been. held and never questioned, so far as we are advised, that in an action by a lessor for rent against a person alleged to be an assignee of the lessee, where it appears that the defendant was in possession under the lease and with the consent of the lessee, and having the benefits of an actual assignment, he "is estopped from setting up that he is assignee only by parol agreement and not by a valid written instrument." (Carter v. Hammett, 12 Barb. 253.) It appears in that case that the instrument purporting to have been an assignment was invalid, because not in writing, and the court reversed a Judgment entered upon the report of the referee in defendant's. favor. That case was before the New York General Term three years App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. later, and it was there said (Carter v. Hammett, 18 Barb. 608) that "where a person goes into possession as an assignee of a lease, and holds himself out to the landlord as such, he is estopped from denying the assignment or objecting that the assignment was not in writing. This point was decided, and, I think, correctly, by a former General Term in this same case. (12 Barb. 253.)" Applying principles laid down in the cases cited, the plaintiff was clearly entitled to recover of the defendant the compensation for his use and occupation. The judgment was based upon a correct theory of the law and should be affirmed. GOODRICH, P. J., BARTLETT, WOODWARD and JENKS, JJ., concurred. Judgment affirmed, with costs. JOHN S. DECKER, Appellant, v. ERIE RAILROAD COMPANY, Respondent, Impleaded with LEHIGH AND NEW ENGLAND RAILROAD COMPANY. Negligence-contract, by which one railroad company runs its trains over the tracks of another, and its employees while so doing are under the exclusive control of the latter it renders the latter company liable to a passenger injured through the neglect of an employee of the former. The Erie Railroad Company entered into an agreement with the Lehigh and New England Railroad Company, authorizing the latter company to operate its trains over a railroad which had been leased to the Erie Railroad Company. The agreement provided: "The railroads and premises included herein shall at all times be maintained and operated during the continuance of this contract by the Erie Company exclusively. The Lehigh Company's trains shall be run on schedules approved by the Erie Company and shall at all times, while on the premises covered by this contract, be subject to the latter company's rules, regulations, orders and control. The train crews and engine crews of the Lehigh Company, while on the premises included herein, shall be subject to the exclusive control of the Erie Company. No person shall be employed in the train crews or engine crews of the Lehigh Company, unless approved by the Erie Company, and any member of the train crews or engine crews of the Lehigh Company may be forbidden to run on the lines included herein, at any time, by the Erie Company." SECOND DEPARTMENT, JUNE TERM, 1903. [Vol. 85. Held, that the Erie Railroad Company was liable to a person who was struck by one of the Lehigh Company's trains, at a highway crossing, on the railroad covered by the traffic agreement, in consequence of the negligent management of the train by the crew in charge thereof. GOODRICH, P. J., and WOODWARD, J., dissented. APPEAL by the plaintiff, John S. Decker, from a judgment of the Supreme Court in favor of the defendant, the Erie Railroad Company, entered in the office of the clerk of the county of Orange on the 12th day of June, 1902, upon the dismissal of the complaint, as to said defendant, by direction of the court after a trial at the Orange Trial Term. Thomas Watts, for the appellant. Henry Bacon, for the respondent. HOOKER, J.: This action was brought against the Erie Railroad Company, the respondent, and the Lehigh and New England Railroad Company. Each of these defendants appeared and answered separately. At the close of the plaintiff's case a motion was made to dismiss the complaint as to the Erie Railroad Company on the ground that there was no legal connection established between that company and the persons whose negligence it was claimed produced the accident.. This motion was granted, and from the judgment entered thereon the plaintiff appeals to this court. The plaintiff was injured at a railroad crossing on the Pine Island railroad, near Goshen, in October, 1900, and his claim is that no signal was given by the bell or whistle from the train by which he was struck, and no headlight was carried by the engine which struck him. It was stipulated on the trial that the train in question was one belonging to the Lehigh and New England Railroad Company. The plaintiff introduced in evidence two agreements; the first was a lease between the Goshen and Deckertown Railroad Company and the respondent of the tracks and the property of the first named road; it was under this lease that the respondent was in possession of the railroad upon which this accident occurred; the second was an agreement between the two defendants in this case, entered into in January, 1897, under which the Lehigh railroad operated trains over the tracks owned by the Goshen and Decker App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. town Railroad Company. That agreement recited that the Lehigh Company desired to obtain trackage rights from Pine Island to Goshen, and provided for the division of the proceeds of the business done by the trains of that company, which was authorized to run and operate its passenger and freight trains over the tracks in question. The agreement further provided: "The railroads and premises included herein shall at all times be maintained and operated during the continuance of this contract by the Erie Company exclusively. The Lehigh Company's trains shall be run on schedules approved by the Erie Company and shall at all times, while on the premises covered by this contract, be subject to the latter company's rules, regulations, orders and control. The train crews and engine crews of the Lehigh Company, while on the premises included herein, shall be subject to the exclusive control of the Erie Company. No person shall be employed in the train crews or engine crews of the Lehigh Company, unless approved by the Erie Company, and any member of the train crews or engine crews of the Lehigh Company may be forbidden to run on the lines included herein, at any time, by the Erie Company.' The evidence introduced by the plaintiff was such as to require the question of negligence of the persons in charge of the locomotive by which the plaintiff was struck to be submitted to the jury, and the question presented upon this appeal is, therefore, whether the respondent is liable for the negligent acts of the members of the train or engine crew which inflicted the injury. This is a case where the doctrine of respondeat superior applies, and it must be held that the Erie Railroad Company is liable for the acts of those whose conduct is in question. The Erie Company assumed entire control and authority over the train and engine crews, and it cannot escape liability for their acts. The gist of the rule as to whether or not defendants are liable as the master of those whose negligent acts have resulted in the infliction of injuries to others has been whether the parties sought to be held have assumed control either of the work or the workmen; whether they had the right of selection, of direction and of discharge. (McCafferty v. Spuyten Duyvil & Port Morris R. R. Co., 61 N. Y. 178, and cases cited.) These privileges the respondent in this case specifically reserved to itself in the agreement between it and the Lehigh and SECOND DEPARTMENT, JUNE TERM, 1903. [Vol. 85. New England Railroad Company. It would be difficult to imagine a case where a party might have more exclusive control or complete command of servants than the respondent possessed of the train and engine crews in charge of the Lehigh and New England Company's train in this case. Cain v. Syracuse, B. & N. Y. R. R. Co. (27 App. Div. 376) is relied upon by the appellant. That is distinguishable from the case at bar. There the conductors alone of the Lackawanna coal trains were to be under the control and orders of the superintendent of the defendant, and power was lodged in him to discharge any employees of the Lackawanna Company for misconduct upon defendant's road. Here the entire train and engine crews of the Lehigh Company were subject to the exclusive control of the respondent. The use of the word "exclusive" is significant; under the terms of the contract the Lehigh Company was powerless to direct or command in the premises while the train crews were upon the Goshen and Deckertown railroad tracks. These crews were not only subject to the control of the respondent which possessed also the power to discharge, but this control was exclusive in it. These views lead to a reversal of the judgment and a new trial, costs to abide the event. BARTLETT and JENKS, JJ., concurred; GOODRICH, P. J., read for affirmance, with whom WOODWARD, J., concurred. GOODRICH, P. J. (dissenting): I dissent from the result reached by a majority of my associates. The plaintiff sued the Erie Railroad Company and the Lehigh and New England Railroad Company for damages occasioned by the neg ligent running of a train of the Lehigh Company. The complaint alleged that the Erie Company was leasing, controlling and operating a railroad owned by the Goshen and Deckertown Railroad Company; that the Lehigh Company, by virtue of an agreement with the Erie Company, used the tracks of the latter company and ran and operated its engines and trains thereon; that while the plaintiff was attempting to drive a wagon across the track at a regular highway crossing in Goshen he was, " by the carelessness, recklessness or negligence of the defendants, their agents or employees, struck and run into by an engine and train of cars which was running for the |