12 Misc. 565 | New York City Court | 1895
Plaintiff, for a cause of action, alleged a contract between himself and defendant, whereby defendant agreed to guard his property situated in his residence, No. 20 Eighth avenue, in this city, from burglars and thieves during the summer of 1891, and for that purpose to employ honest and competent servants to watch his premises; that defendant, in violation of this contract, employed a person to watch his premises who broke into and entered plaintiff’s house and stole property of plaintiff therefrom of the value of $316, which amount plaintiff sued to recover. The defense was a general denial. Plaintiff obtained a verdict, and from the judgment entered thereon, and from the order denying a motion for a new trial, this appeal is taken.
The evidence submitted by plaintiff went to show that defendant employed one Burg as a watchman to look after plaintiff’s premises; that Burg feloniously entered plaintiff’s premises and stole property therefrom; that Burg was arrested for the theft, and it appeared soon after that he was an ex-convict.
At the close of the evidence the learned counsel for the defendant moved for a nonsuit on twelve grounds, some of which were based on the alleged insufficiency of the evidence to prove the three questions of fact submitted to the jury as above stated, while the others rested on the contention, stated in various forms, that defendant was not liable for the criminal acts of Burg done without its knowledge or assent, and outside of the line and scope of his employment. This motion was denied, and defendant excepted, separately, to the ruling of the court on each ground upon which said motion was made.
On the argument of this appeal it is claimed, as ground for reversal, that the court erred in denying the motion for a nonsuit.
In so far as any of the grounds urged in favor of granting the motion for a nonsuit related to the questions of fact in dispute, we think that those questions were properly left to the jury to determine, and we are of the opinion that the verdict was well sustained by the evidence, and that it should not be disturbed.
On the other grounds stated for the motion the authorities cited by the learned counsel for the appellant well sustain the general proposition that the master is not liable for the unlawful or willful acts of his servant done outside of his line of duty, or the scope of his employment. But we do not think that this proposition is applicable to cases like the one before
Plaintiff employed defendant to protect his property with the full knowledge that it could only act through its servants whom it employed for that purpose. Defendant was bound to exercise reasonable care in the selection of its servants, and if it neglects to do so (and the jury have here so found) it can
Judgment and order denying new trial must be affirmed, with costs.
Yan Wvok, J., concurs.
Judgment and order affirmed, with costs.