87 N.Y.S. 810 | N.Y. App. Div. | 1904
The action is for trespass in that servants of the defendant broke open a cellar door in order to take out a meter belonging to the defendant in the premises of the plaintiff. The plaintiff served a bill of particulars wherein he claimed for compensatory damages, $150; punitive damages, $75 ; damages to the cellar door and for the repair of the same, $25. The learned Municipal Court justice charged the jury that if they believed the servants of the defendant “ broke in,” they might award “ any sum of damages you believe proper up to the limit of $250.” The jury returned a verdict of $150. The defendant moved for a new trial under section 254 of the Municipal Court Act,
The point is made that the defendant is not liable. It is liable if the servants’ acts were commanded or authorized by it. And it is held that “ the authority may be express or implied, and a previous command may be proved either by direct evidence or by any legal evidence which will satisfy the jury.” ( Welsh v. Cochran, 63 N. Y. 181,184.) There is in evidence an order from the defendant to its servants that they should collect five dollars and forty cents or remove the meter, and a return thereon that it had been removed. This was produced by the defendant on the trial, and, therefore, presumably it had been returned to it by its servants. Even though the master had given no explicit directions to break open the door in order to make the removal, a master may be held liable for the acts of a servant within the general scope of his employment, while about his master’s business, even though the act be “negligent, wanton or willful.” (Grimes v. Young, 51 App. Div. 239, per Willard Bartlett, J., citing Mott v. Consumers' Ice Co., 73 N. Y. 543; Ochsenbein v. Shapley, 85 id. 214; Burns v. Glens Falls R. R. Co., 4 App. Div. 426; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23 ; Meehan v. Morewood, 52 Hun, 566; affd., 126 N. Y. 667.) Conceding that the Transportation Corporations
The judgment should be affirmed, with costs.
All concurred.
Judgment of the Municipal Court affirmed, with costs.
Laws of 1903, chap. 580.— [Rep.