(dissenting).
I do not concur in the affirmance of this judgment. There can be no dispute but that plaintiff was illegally arrested, and the only question is whether the defendants are liable .for the act of their' manager in causing the arrest. There is no evidence that the defendants .ever authorized Tullís to procure the arrest of any one, and no rule in force at the restaurant was proved which gave Tallis, authority to cause the arrest to be made, nor can I find any evidence of a rule that any one who passed the cashier’s desk must stop whether he had a check or not. Childs, one of the defendants, and Van Fleet, the cashier, swear that there was no such rule. There was nothing which would justify a finding that Tullís in causing the arrest of the plaintiff was acting within the scope' of his employment or under any authority, either express or implied, conferred upon him by the defendants. While it is true that the restaurant was under the management of Tullís, this arrest took place, not in the restaurant, but on the street; and assuming that the defendants conferred upon the manager authority to do such acts as were necessary to preserve order in the restaurant or to prevent persons from leaving it without paying what was owing, there was no implied authority for Tullís to follow a customer into the street and after an altercation with him there, to procure his arrest. The case of Mali v. Lord (39 H. Y. 381) has been considered as settling the extent of the implied authority conferred by the master upon the superintendent or manager of a store in rela*311fcion to causing the arrest of its customers. It was there held that by the employment the master confers upon the servant the right to do all necessary and proper acts for the protection and preservation of his property, to protect it against thieves and marauders; and that the servant owes the duty so to protect it to his employer. But this does not include the power in question. It cannot be presumed that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present.” In Mulligan v. New York & Rochaway Beach R. R. Co. (129 N. Y. 506) substantially the same question was presented, and it was there held that an agent was not acting within the scope of his authority in procuring the arrest of a person who had purchased a ticket from him with counterfeit money, and I cannot find that this rule has been qualified by subsequent decisions. It is not,what the servant “intended and believed to be for the interest of the master,” but what authoi’ity the master by the employment conferred upon the servant. However reprehensible the act of Tullís may have been, before a liability for such an act can be imposed upon the defendants, .it must be shown that they conferred such authority upon Tullís as would justify him in doing what he did as their agent, and that his acts were their acts and done in pursuance of some authority, either express or implied. There is no proof of any express authority, and I do not think there is anything tó justify a finding of an implied authority to cause the arrest of' a person in the public street after he has left the defendants’ premises.
McLaughlin, J., concurred.
Judgment and order affirmed, with costs.