While this case is not free from doubt, I am disposed to dissent from the result reached by the majority of this court. Assuming the most favorable inference from the facts, the defendant’s janitor, for the purpose of driving away some noisy and troublesome boys, ran out upon the sidewalk in front of the defendant’s premises, and seeing plaintiff’s son on the opposite side of the street, and, no doubt, assuming him to have been one of those who had been producing the disturbance, threw a club at him, causing the injuries complained of here. If he was the defendant’s janitor or watchman and had charge of the premises, he was given the authority to ■ drive away such persons as should trespass upon or annoy those who were lawfully in possession of the premises, and in the act of driving these boys away he was doing the work of the master. He had *481the right to use such force as was necessary to accomplish the result, and if he used more force, or improper means, he was still ■doing what the master might have done, arid the latter is responsible within well-defined limits. In the case now before us the janitor 'did not leave the defendant’s premises; he was still upon the sidewalk, with reference to which he had, or might have had, duties to discharge for the master, the injury being done by throwing a stick ■across the street. If, while upon the sidewalk, and in the act of ■driving the plaintiff’s son away from the premises, the janitor had ¡struck the boy with a club, it seems quite clear that, within the authorities, the defendant would have been liable for the tort, and it is difficult to understand how the rule can be different where the ¡same result follows from the throwing of the club across the street. The janitor was none the less engaged in the work of the master, ■and the mere fact that he made a mistake and threw the club at a boy who had not been engaged in the mischief does not alter the ■case.
The rule recognized in all the recent cases is that, for the acts of the 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 furtherance of the master’s interest, the master will be responsible, whether the acts are done negligently, wantonly, or even willfully. In general terms, if the ¡servant misconducts himself in the course of his employment, his •acts are the acts of the master, who must answer for them (Mott v. Consumers’ Ice Co., 73 N. Y. 543, 547), and while there are exceptions to this rule, they all proceed upon the ground that the acts of the servant are not done in the course of the service, and were not such as the servant intended and believed to be for the interests of the master. (Mott v. Consumers’ Ice Co., supra.) Assuming that the janitor in this case supposed that he was doing the will of the master in driving these boys away; that he was engaged in a ' work which had for its object the welfare of the master’s ' "property, can it be said that the master was not liable because the servant exceeded his authority to drive away those who were actually engaged in disturbing the premises, and committed an assault upon an entirely innocent person ? It seems *482to me that the only test in cases of this character is whether the servant, at the time, is engaged in the general work of the master; whether his acts are in the discharge of his duty as an employee, or are such as in their very nature take them out of this classification. Generally where a man is at work for another he is presumed to use his energies in behalf of his employer, and it is only where he. abandons this employment and assumes to act for his own purposes that the master is relieved from responsibility for his acts. The general rule is that of liability, and this continues unless the fact is proved to the satisfaction of the jury that the servant willfully and maliciously, and to effect some purpose of his own, outside of his employment, committed the injury ; in other words, that at the time of the injury, and in the act of its commission, the relation of master and servant did not exist. (Mott v. Consumers’ Ice Co., supra, 549.) Clearly the jury might have drawn the inference that the janitor was in the discharge of his duty in driving away the boys who had been disturbing the tenants of the building, and if this was in fact his duty, the methods which he made use of, or the fact that he .threw a club from the defendant’s premises, did not alter the case; the master was answerable for the conduct of his-servant. A willful act which will exempt a master from liability for the tort, of his servant must be done outside of bis duty and his master’s business, and when the master, sued for an injury resulting from the tortuous act of his servant while apparently engaged in-executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing his own purposes, without reference to his master’s business, and was acting maliciously and willfully, it must, ordinarily, be left to the jury to determine this, issue upon a. consideration of all the facts and circumstances proved. (Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129, 137, 138, and authority there cited; Craven v. Bloomingdale, 171 id. 439, 450. See Palmeri v. M. R. Co., 133 id. 261.)
' So far as appears, the janitor, in anything that he did,- did not act for any purpose of his own, but to drive away the boys from the-premises of his master. It matters not that he exceeded the powers-conferred upon him by his principal, and that he did an act that the principal was not authorized to do, so long as he acted in the line of his duty, or, being engaged in the service of the defendant. *483attempted to perform a duty pertaining, or which he believed to pertain, to that service. (Lynch v. Metropolitan El. R. Co., 90 N. Y. 77, 86, 87, and authorities there cited.) Of course, if the janitor simply ran out into the street and threw a club at the plaintiff’s son, he would not be acting within the line of any duty which he owed to the master, and he would be alone liable. But if, as is here suggested, the janitor was in the act of driving off trespassers and threw this club, he was engaged in doing that which he conceived to be in the interests of his master, and the latter is liable for his errors in judgment or for faults of temperament by which third persons suffer injury.
I think this judgment should be reversed.
Judgment affirmed, with costs.