Burgess v. Fadden
| Decision Date | 19 October 1964 |
| Citation | 253 N.Y.S.2d 66,22 A.D.2d 713 |
| Parties | Lewis BURGESS, Respondent, v. Joseph Robert FADDEN et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Katz, Matte & Charles, Glens Falls, for appellant Joseph Robert Fadden (John A. Murray, Albany, of counsel).
Grey & Synder, Theodore H. Grey, Saratoga Springs, for appellant Joseph Robert Fadden, Jr.
Carroll & Amyot, James F. Carroll, Saratoga Springs, for respondent.
Before GIBSON, P. J., and HERLIHY, REYNOLDS, AULISI and HAMM, JJ.
The defendants-appellants, Joseph Robert Fadden and Joseph Robert Fadden, Jr., are respectively father and son. They appeal from a judgment against them entered on the verdict of a jury. Father and son appeared by separate attorneys on the trial and have filed and served separate notices of appeal and briefs. The plaintiff-respondent sued to recover damages for personal injuries sustained when he was struck in the leg by a power saw owned by the father and operated by the son, while the son was clearing land owned by his father and mother. On this appeal the appellants do not contest either the negligence of the son or the reasonableness of the verdict.
The sole issue raised by the father is stated in his brief as follows:
'* * *
'Knowledge or acquiescence on the part of the father that his son would use the power saw in his absence to help Burgess clear the land did not result in the designation by the father of his son as his agent.'
The evidence established the following facts: The father and his wife were the owners of the premises on which the work was being done by the plaintiff; the father was the owner of the power saw being used by his son; the son had used the power saw to clear the premises of his father during the fall of 1961 and spring of 1962; the plaintiff was engaged by the father to clear his premises as an independent contractor; the plaintiff had observed the son using the power saw on occasions prior to June 30, 1962, for the purpose of helping his father clear the land; on June 30, 1962, the son asked the plaintiff if he wanted help in his work and was told by him 'sure', 'yes', 'it is up to him, or he could if he wanted to'; the son had used the power saw in the plaintiff's presence and under the supervision of his father on several occasions prior to June 30, 1962; the assistance which the son rendered the plaintiff on June 30, 1962, benefited the father and the father at no time told the plaintiff that the son was not to work with it. Both the son and the father testified that the father had instructed the son not to use the saw except in the father's presence.
At the close of the plaintiff's testimony the father moved for a dismissal of the...
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...pay that the tending and trailer spot business was not his, and that he asked Burgess, an independent contractor (Burgess v. Fadden, 22 A.D.2d 713, 714, 253 N.Y.S.2d 66, 68) who had been hired by the father to clear off land if he wanted help. Here, there is no proof of continuity or the pr......
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Fadden v. Cambridge Mut. Fire Ins. Co.
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