App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. defendant, Lehigh and New England Railroad Company, and in its service, being operated by and under the management of the said defendant; * * * that before crossing or attempting to cross said railroad track on said highway, as aforesaid, he saw no signal of any kind to warn him of the approach of said engine and train of cars, and that there was no signal of any kind displayed to him; that he heard no bell rung or whistle blown on the locomotive of said train, and the plaintiff alleges, upon information and belief, that the said defendant, Lehigh and New England Railroad Company, its servants or employees, carelessly and recklessly neglected to ring said bell or blow said whistle on said locomotive or give any signal whatever to warn this plaintiff of the approach of said engine and train of cars, and that the said defendant, its agents or employees, negligently and carelessly omitted to have the headlight upon said engine lighted, and that said engine and train of cars was carelessly, recklessly and negligently propelled through said village and up to, over and across said highway in an unlawful and dangerous manner." There was evidence sufficient to require the submission to the jury of the question of the negligence of the engineer, and it was conceded by the plaintiff that the train was a Lehigh train. The only evidence as to the liability of the Erie Company was contained in an agreement between the two companies which authorized the Lehigh Company to use jointly with the Erie Company the said tracks and to run and operate its freight and passenger trains thereon, the Lehigh Company and the Erie Company receiving each a proportionate part of the gross receipts. The agreement also contained the following provision: "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 APP. DIV.-VOL. LXXXV. 2 SECOND DEPARTMENT, JUNE TERM, 1903. [Vol. 85. 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 Lehigh Company's trains of all classes shall have the same rights on the premises included herein as are accorded to similar trains of the Erie Company." The court dismissed the complaint as to the Erie Company, and this appeal brings before us the question whether that company is responsible for the negligence of the engineer or other persons running the train in question. In Philips v. Northern R. R. of New Jersey (62 Hun, 233) the plaintiff was injured while attempting to board a car. She had purchased a ticket of the defendant, but at a place outside of the limits of her ticket was attempting to get on a train which was being run over the defendant's tracks by the Erie Railroad Company, under an agreement between the two companies. The court held that her cause of action arose ex delicto and not ex contractu, saying: "The plaintiff's cause of action rests solely, if it exists at all, upon some negligence on the part of those who were controlling and operating the train from which she received her injuries; and the train was being operated, and was, in its movements, under the control of the Erie Railway Company alone. The lease or contract put in evidence by the defendant, in substance, transfers the control, management and operation of the trains from the defendant to the Erie Railway Company at a compensation of sixty-five per cent of the gross receipts. * As the contracting parties were not to share in profit and loss, but were to receive simply a fixed share of the gross earnings, the agreement would scarcely constitute a partnership even at common law. *If, then, the plaintiff were, in truth, injured through any negligence of the conductor or brakeman of the train in question, she could not under any head of the doctrine of respondeat superior, hold the defendant liable. The Erie Railway Company was the only principal responsible in such a case." The difference between the Philips case and that at bar is the fact that the agreement in the Philips case contained nothing analogous to the clause above quoted from the agreement between the defendant and the Erie Company, as may be seen from * * * * App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. an examination of the record on appeal in the Brooklyn Law Library. But this case was cited and followed in Cain v. Syracuse, B. & N. Y. R. R. Co. (27 App. Div. 376), an action to recover damages for injuries received at a highway crossing through the negligence of the Delaware, Lackawanna and Western Railroad Company, which was running its trains over tracks owned by the defendant, under an agreement between the two by which the superintendent of the defendant was to arrange time tables and the conductors of the Lackawanna Company's trains were to be under his control and subject to his orders. The defendant's superintendent had the power to discharge any of the employees of the Lackawanna Company for misconduct upon the defendant's road. The negligence charged was the failure to ring a bell or give any signal of the approach of the train to the crossing. It was held by the court that such an agreement was authorized by section 78 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1893, chap. 433), and that the defendant could lawfully permit the Lackawanna Company to run its trains over its road, and that as the defendant did no unlawful act, or no lawful act in a negligent manner, causing damage to the plaintiff, it was not liable to her. There is a reference by the court to authorities, which, in its opinion, justified "the holding that the supervisory right of control retained by the defendant does not aid the plaintiff, since she in no wise traces her injury to a failure to exercise it."" The clause in the agreement between the present defendant and the Erie Company is somewhat broader in language, but its effect upon the liability of the Erie Company to the plaintiff is not greater. It does not make the engineer the agent of the defendant in the details of running the trains of the Lehigh Company so as to include sounding the whistle or ringing a bell at a crossing or having the headlight of the engine lighted. In such matters he was the servant of the Lehigh Company, whose train he was running. It is true that the contract provides that while running on the track in question the train and engine crews shall be subject to the exclusive control of the Erie Company, and that no person shall be employed in such capacity except on the approval of the Erie Company, and that any such persons may be forbidden by it to run over SECOND DEPARTMENT, JUNE TERM, 1903. [Vol. 85. such track. But this provision does not render the Erie Company responsible for the details of the methods of running trains. We are not deciding the question whether the Erie Company would be liable to a passenger of the Lehigh Company for an injury occasioned through the employment of an incompetent servant, nor for a cause of action arising on contract, but simply the question as to a liability arising ex delicto, and for such cause of action the Erie Company cannot be held liable because the engineer of the Lehigh Company may have been guilty of negligence in the management of his engine and in giving proper signals of his approach to a crossing. In the language of the Cain Case (supra), the accident to the plaintiff did not result from and cannot be traced to the failure of the Erie Company to exercise its supervisory power over the employees of the Lehigh Company, whose negligence caused the injury. For these reasons, the judgment should be affirmed. WOODWARD, J., concurred. Judgment reversed and new trial granted, costs to abide the event. THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM A. YOUNG, Respondent, v. THOMAS STURGIS, as Fire Commissioner of the City of New York, and RICHARD H. LAIMBEER, JR., as Deputy Fire Commissioner of the City of New York, for the Borough of Brooklyn, Appellants. Right of a member of the uniformed force of the New York fire department, injured while in the active discharge of his duties, to be employed in some inactive service at the same salary—notice to him of a hearing before dismissal. The fire commissioner of the city of New York directed two surgeons attached to that department to examine a member of the uniformed force of the depart ment who had been injured while discharging his duty at a fire on a steam. ship. These surgeons reported that the fireman "is permanently disabled from performing any duty as a fireman. January 15, 1902, he fell in hold of a vessel, fracturing the brim of his pelvis. He is now permanently lame; one leg, owing to contraction, is three-quarters of an inch shorter than the other. He also suffers from continual neuralgia." App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. Held, that the words "duty as a fireman" should be interpreted as meaning "active duty in the uniformed force;" That if the injured fireman, although permanently disabled from performing active duty in the uniformed force of the department, was still able to perform certain other special services in the department which did not require active service as a fireman, he came within the clause of section 790 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), which provides: "But should permanent disability caused by injuries received in the active discharge of his duties disqualify him only from performing active duty in the uniformed force, he shall be employed at the salary received when such disability occurred in some position in the department not requiring active service as a fireman;" That the clause of section 790, providing that in every case the fire commissioner shall determine the circumstances of disqualification, was qualified by the clause quoted and was subordinate thereto; That the weight to be given to the determination of the commissioner in a particular case would be weakened, if not destroyed, if it appeared that the fireman affected by the determination was not given notice or an opportunity fo be heard. APPEAL by the defendants, Thomas Sturgis, as fire commissioner of the city of New York, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of March, 1903, granting the relator's motion for a peremptory writ of mandamus requiring the defendants to employ the relator in some position in the fire department of the city of New York, not requiring active service as a fireman, at the same salary he received before he became disqualified from performing active duty by reason of an injury received in the performance of his duties. James McKeen [P. E. Calahan with him on the brief], for the appellants. Joseph A. Burr, for the respondent. GOODRICH, P. J.: This appeal is from an order of the Special Term granting a peremptory writ of mandamus requiring the defendants forthwith to "employ the said William A. Young in some position in the Department in the City of New York, not requiring active service as a |