The complaint was dismissed upon the trial after the plaintiff had completed her opening to the jury. Before addressing that body her attorney stated to the court that with its permission and by the consent of counsel he would present a full statement of facts as he ■ understood the' witnesses would testify, to the end that he might invite a motion to dismiss, , and to have the question of law whether the facts constituted a cause of action determined at the outset-This course was pursued and resulted in the dismissal of the complaint. From the judgment entered thereon the plaintiff appeals.
The record, therefore, presents legal questions in the same phase - as if the plaintiff had been nonsuited,, or 'as if a verdict had been directed against her at the close of all the evidence. Unless the opening,shows such facts as preclude the possibility of recovery, or *477some other fact fatal to the plaintiff’s right of action, or where the pleadings present no cause of action, the dismissal is erroneous. Every material issue must be resolved in plaintiff’s favor. (Hoffman House v. Foote, 172 N. Y. 348; Montgomery v. Boyd, 78 App. Div. 64.)
The facts stated by the plaintiff were briefly these: The defendant was the owner of tenement houses at the corner of Hicks arid Warren streets in the borough of Brooklyn; for a number of years prior to the day of the occurrence of the facts which give rise to the action a man named Yoltz had been around the premises, either as watchman or janitor, or at least had been seen from time to time removing ashes from the premises, sweeping out the place, sweeping the sidewalk, and from time to time Yoltz drove away “ unruly and noisy boys who had congregated in front of the flats in that neighborhood.” On the day in question Yoltz was on the premises when the plaintiff’s son, Arthur Kennedy, coming from his home, was walking by on the sidewalk across the street from the flats, when he noticed a number of boys who were “running on the same side of the street as the flats, down in front of the flats laughing and shouting and making quite a noise.” The boys in that neighborhood are somewhat unruly and noisy. While plaintiff’s son was standing there Yoltz came running out of the doorway of the premises with a stick of wood in his hand, when the crowd of boys, who were on the same Side of the street as the flats, cleared off and went back to the corner from which they came. The plaintiff’s son was-directly across the street from where Yoltz came out; when the latter emerged from his premises upon the sidewalk he looked after the running boys; then “ looked off to where the plaintiff’s boy was and then threw this stick he had and struck the boy upon the arm,” inflicting injuries upon him; the plaintiff has lost the services of her son. Between the outer wall of defendant’s flats and the place where the boy stood when he was injured were the sidewalk in front of the premises and the whole width of the highway.
This state of facts required a dismissal of the complaint. - The principles of law applicable to the case have been settled by a long line of carefully and well-considered decisions; the difficulty consists in their proper application. We had occasion to review the *478most important of these in the decision of Collins v. Butler (83 App. Div. 12) where it was held as matter of law that the owner of a store-was liable foi’ the .act of his clerk in perpetrating an unprovoked, wanton assault upon a customer. . (Mali v. Lord, 39 N. Y. 381; Dupre v. Childs, 52 App. Div. 306 affd. on opinion below, 169 N. Y. 585 ; Rounds v. D., L. & W. R. R. Co., 64 id. 129; Cohen v. D. D., E. B. & B. R. R. Co., 69 id. 170 ; Mott v. Consumers’ Ice Co., 73 id. 543 ; Ochsenbein v. Shapley, 85 id. 214; Fogarty v. Wanamaker, 60 App. Div. 433 Burns v. Glens Falls R. R. Co., 4 id. 426 ; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23 ; Meehan v. Morewood, 52 Hun, 566 ; affd. on opinion below, 126 N. Y. 667 ; Geraty v. Stern, 30 Hun, 426 ; Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 117; Palmeri v. M. R, Co., 133 id. 261 ; Girvin v. N. Y. C. & H. R. R. R. Co., 166 id. 289.)
The discussion of the rules of law bearing upon the master’s liability for negligent, wanton - ór willful acts of his employees, contained in these cases, has culminated in the recent decision of the Court of Appeals that the doctrinéis as follows: “ For the.acts of a servant, within the general scope of his employment, while engaged in his master’s business, and done with a .view to the furtherance- of that business and the master’s interest, the master will be responsible, whether the act be done- negligently, wantonly or even willfully. * * '.* But if a servant goes outside of his employment, • and without regard to his service, acting maliciously or in order* to-effect some purpose of his own, wantonly commits a trespass or causes damage to another, the master is not responsible.’’ (Girvin v. N. Y. C. & H. R. R. R. Co., supra ; Mott v. Consumers’ Ice Co., supra) The facts Upon which the .Court of Appeals decided the Girvin case were - substantially that the plaintiff, a lad of fourteen years, was -engaged with others in & trespass upon the defendant’s freight train for the purpose of unlawfully -riding thereupon ; that-just as the train started one of defendant’s brakemen came toward him, and the plaintiff, after running across a flat car, jumped from the train, and that as he jumped the brákeman also jumped from the car upon him, striking him before he reached the ground, breaking his leg, and‘then raising him up from the ground-continued, the assault. 1 In that cáse the court said it was -inclined to the view that -the' jury might have found that the assault upon the plaintiff *479commenced on the car before they left the train, and announced that “ if the assault was commenced before leaving the car, the brakeman was acting within the scope of his employment, and the defendant became liable for his acts.” (Id. 292.)
The case at bar presents an assault of somewhat different character. Here Kennedy, when hurt, was not and had not been in the company of the crowd of boys, and there is no evidence upon which it could be predicated that Yoltz conceived Kennedy to be committing a breach of the peace; the boy was simply an observer of what was taking place; he had not been and was not then nearer the plaintiff’s premises than the sidewalk across the public street. In the Gvrvi/n case the employee was directing his attention toward and his assault upon one who he evidently conceived was interfering with his master’s property and rights; no possible view of the facts at bar would warrant an assumption that Yoltz had in mind that the injured boy was doing anything to prevent which he might possibly be acting to the furtherance of his.master’s business or his master’s interests. If the brakeman in the Girvin case had chased off his train, by threatening to throw a lump of coal, a trespassing crowd of boys, and then turning and discovering a strange lad at the side of the railroad and without the right of way, had struck him with the coal, this case would have been presented, and wé do not believe that the facts would have been thought such as to warrant their submission to a jury. Or, in' the case at bar, had, Yoltz aimed his cudgel at the retreating crowd of boys and injured one, the rule in the Girvin case might have been held applicable, for then Yoltz considering, as he might, that it was his duty in the service of his master to prevent a breach of the peace on the side-walk in front of his master’s premises, would have been doing an act, although accomplished by negligence, wantonness and willfulness perhaps, which the jury would have been permitted to say was in the master’s interest. This illustration is used without deciding the proposition which was argued at the bar, whether the defendant would be liable in a case where the, servant set in motion on the master’s premises forces which accomplished the infliction of injuries at a point without their limits.
The case of Grimes v. Young (51 App. Div. 239), decided in this department upon the opinion of Hr. Justice Babtlett, seems *480to present a state of facts more nearly similar to those in hand than were disclosed in the Qinim, case. The plaintiff’s intestate was shot down by one Buck, night watchman on defendants’ premises, and this language is to be found in the opinion: “ It is not clear from the evidence that when Buck fired the fatal shot he had gone on duty for the night as the defendants’ watchman; but whether he had or not, it is manifest that his assault upon G-rimes was an act wholly outside the scope of his employment and having no connect tion whatever therewith. The Grimes boy was not upon the premises of the defendants, nor had he made any attempt to' trespass upon their property or interfere therewith. He had been bathing in the river with a number of companions; and after leaving the water, and while standing upon the public wharf, was shot down by Buck without the slightest provocation.”. (Id. 241.) In that case it was held that the master was not liable.
The conduct of Yoltz, we think, was such that there "can be drawn therefrom no inference that he was acting or intended to act for his master in striking the boy Kennedy; he went outside his employment and without regard to his service committed a trespass for which the defendant is not responsible.
The judgment should be affirmed.
All concurred, except Woodward, J., reading for reversal and Bartlett, J., taking no part.