Tobin v. W. T. Grant Co. 9 A.D.2d 691

Appeal (1) by permission of this court, from an order of the Appellate Term which (a) reversed a judgment of the District Court, Nassau County, Second District, dismissing the complaint after trial before the court without a jury, and (b) directed judgment in favor of respondent, and (2) from the judgment entered thereon in the District Court. Respondent brought the action to recover damages for the value of animals allegedly suffocated by smoke from a fire negligently caused by an employee of appellant during the course of his employment. Order of the Appellate Term reversed and a new trial ordered, with costs in the Appellate Term and in this court to abide the event, and judgment vacated. Appeal from judgment dismissed. No appeal lies from such judgment. (See Civ. Prae. Act, § 623, subd. 1.) The basic issue of the application of the doctrine of respondeat superior, assuming carelessness of the employee of the appellant, has never been determined. The conclusion *692of the trial court that respondent was guilty of contributory negligence is without factual support. It was error to grant judgment to respondent on appeal on the ground that it was established as a matter of law that prior fires had been similarly commenced by reason of negligence of employees of appellant. On the new trial the determination of liability of the employer should be made after all pertinent factors have been evaluated. (Of. Wood v. Saunders, 228 App. Div. 69; Bluestein V. Scoparino, 277 App. Div. 534.) Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.