Action to recover damages for an injury sustained by the plaintiff by reason of an alleged assault by, or the negligence of, defendant’s servant. The complaint was dismissed at the close of plaintiff’s case, and from the judgment thereafter entered he has appealed.
The facts, so far as they are material, are as follows: On the 26th of May, 1901, the plaintiff, seventeen years of age, with several other boys, was playing ball in one of the streets of the city of New York, and the ball with which they were playing was driven into defendant’s yard, which was inclosed by a high fence; the defendant had a watchman in the yard to look after it and the property in the building immediately adjoining; after the ball had been driven into the yard the plaintiff, or one of his companions, called to the watchman to throw it out; he threw out a ball, but it was not the one which belonged to the boys, and thereupon one of them, a boy by the name of Grilligan, went upon an adjoining shed, so that he could get into the yard; he stepped upon a ladder for the purpose of descending into the yard, and as he did so the watchman pulled the ladder from under him, he fell to the ground and was immediately seized by the watchman, who, while holding him in this position, drew a pistol, and pointing it in the air, either by accident or design, discharged it, and the bullet therefrom struck the plaintiff *308in the leg. It is to recover damages for the injury thus inflicted that this action was brought.
The pistol the watchman took from a drawer in defendant’s building, or else it was furnished to him by the defendant. The plaintiff, at the time he was injured, was standing upon a shed, but it did not belong to the defendant, although it was near his property. There was no evidence to the effect that the watchman knew, or had any reason to believe, at the time the pistol was discharged that the plaintiff was upon the shed; on the contrary, the uncontradicted evidence was to the effect that the pistol was pointed in the air as soon as the Gilligan boy was seized and before the plaintiff went upon the shed.
This being the condition of the testimony at the close of plaintiff’s case, I am of the opinion that the complaint was properly dismissed. The facts, it seems to me, brought the case clearly within the rule laid down in Grimes v. Young (51 App. Div. 239), and what the court there said in affirming a nonsuit is as applicable to this case as it was to that, viz.: “ Taking all the evidence on this subject together, we have the case of a watchman armed with a revolver by his employers and authorized by them to fire with it into the air in order to frighten away intruders, for purposes of self-defense or to protect the property which he was employed to watch. If, under these circumstances, it appeared that the watchman, either to defend himself or to protect the property of his employers, had fired at a person and killed him instead of firing into the air, * * * it might very well be that the toaster would be responsible for the wrongful act of the servant.” Here, the plaintiff was not upon the defendant’s premises, nor did the watchman even know that he was endeavoring to go upon them. Therefore, there was nothing which would have justified a finding that the watchman, when he discharged the pistol, did so for the purpose of self-defense or for the protection of the defendant’s property. It is true he was, at the time, in the employ' of the defendant, but I take it that no one would contend that if the watchman, to gratify his own curiosity or for pleasure, had fired the pistol in the air and some one had been •injured, defendant could have been held liable. The discharge of this pistol was either by accident or else, so far as appears, for some purpose not disclosed on the part of the watchman. It certainly *309was not for the purpose of preventing the plaintiff entering the yard or interfering with or injuring the defendant’s property, because, as already indicated, the watchman did not even know, at the time it was discharged, that the plaintiff was upon the shed or intended to go upon it. Where a servant goes outside of his employment, and without regard to his service, acts maliciously, or, in order to accomplish some purpose of his own, wantonly commits a trespass or causes damage to another, the master is not responsible. (Mott v. Consumers Ice Co., 73 N. Y. 543.) This is the general rule, and, applying it to the facts in this case, it seems to me it must be held that the watchman in discharging the pistol was not acting within the scope of his employment.
The judgment is right and should be affirmed, with costs.
Van Brunt, P. J., and O’Brien, J., concurred ; Ingraham and Hacth, JJ., dissented.