The driver was employed by the defendant to deliver milk to its customers and he was paid by it for that service. He was not authorized by the defendant to employ any one either to assist him or to be with him on the wagon. He had no actual or implied power to hire any one on the defendant’s behalf. A rule of the company, copies of which were prominently posted in the company’s depot in such manner *622as constantly to be brought to the attention of the drivers, and also printed in their route books in red ink, provided: “ Drivers must not under any circumstances allow any person not in the employ of this company to assist them in any way or to ride on their wagon.” The driver Schmidt employed a boy under fourteen years of age to assist him in the work that he was employed to do, paying him from his own pocket. There is no pretense, in this case, that the defendant had any knowledge of the employment of this boy, or acquiesced therein. In fact the evidence is to the contrary. The driver started each morning from the company’s depot at Twenty-eighth' street and Tenth avenue, the boy joined him at Forty-first street and Tenth avenue, and assisted him for about an hour and a half. The driver, in response to questions asked by the Assistant Attorney-General, stated that the inspectors of the defendant had told him not to hire boys, but they had never found him with a boy in his wagon. Nevertheless the defendant has been convicted of violation of section 162 of the Labor Law, which provides: “ No child under the age of fourteen years shall be employed or .permitted to work in or in connection with any mercantile or other business or establishment specified in the preceding section.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 162, as amd. by Laws of 1911, chap. 866.) This conviction is to be affirmed, on the grounds that knowledge and consent on the part of the person accused is not essential, because the act is malum prohibitum and not malum in se; that although the defendant did not employ the boy, it permitted his employment, and that “ permit ” in such a case does not mean to consent to with knowledge; that the statute casts a burden upon the master to see that no one in his employ violates the law, and that negligence in the fulfillment of this duty renders the employer criminally liable, without regard to the question by whom or for whom the boy is employed, or whether he had knowledge thereof. I cannot assent to su'ch a construction of the statute. The prohibition of the statute is first, no child under fourteen shall be employed, and is violated by the person who employs, or on whose behalf such boy is employed. But a person who does not employ the boy or on whose behalf he is not employed, and who has no knowledge
*623of such employment and it is contrary to his express direction, is not liable. This distinction is strikingly illustrated in People v. Taylor (192 N. Y. 398) in which the conviction of a superintendent of a factory was reversed. A girl under sixteen years of age had been employed by a foreman without the knowledge or consent of the superintendent and contrary to his express direction. The court said, however (p. 400): “ We assume that the person who owns a factory is hable for a violation of said section of the Labor Law if contrary to the provisions thereof a child is employed by such owner, either directly or through an officer, agent or employee, and wholly without regard to whether the employment is an intentional and wilful violation of the statute. * * * . The owner, by or for whom the child is employed in violation of the statute, is hable because such employment is prohibited. The question of intent is immaterial.” In the instant case the boy was not employed by nor for the defendant. The driver had no authority, express or implied, to employ any one for the defendant. Nor did the defendant permit this boy to work. When used with discrimination “ permit ” and “ suffer ” are not synonymous. To permit is to allow with expressed consent; to suffer is to allow by not objecting. The first presupposes an affirmative act; the latter a failure to act. That this distinction was understood by the Legislature is demonstrated by the use of both words in certain sections of the Labor Law and only one in others, e. g., section 70 (as amd. by Laws of 1913, chap. 529) provides: No child under fourteen shall be “ employed, permitted or suffered ” to work in a factory, and no child between fourteen and sixteen shall be “ employed, permitted or suffered ” to work without an employment certificate. Section 131, no child under sixteen shall be “ employed, permitted or suffered ” to work in any mine or quarry, and no female shall be “ employed, permitted or suffered ” to work in any mine or quarry. Section 161 (as amd. by Laws of 1915, chap. 386), which immediately precedes the section under consideration, provides: No child under sixteen shall be “ employed, permitted or suffered ” to work more than the hours and at the times therein specified; while in sections 77, 93, 162 and 171 the *624words used are “ employed or permitted.” (See Laws of 1912, chap. 539; Laws of 1913, chaps. 465, 464; Laws of 1911, chap. 866, and Laws of 1913, chap. 145.) Both “ permit ” and “ suffer,” however, import knowledge. A person cannot allow, by consent, or by failure to object, a thing to be done of which he has no knowledge. As Judge Blatchford said when construing a Federal penal statute: “Every definition of 'suffer’ and 'permit’ includes knowledge of what is to be done under the sufferance and permission, and intention that what is done is what is to be done.” (Gregory v. United States, 17 Blatchf. 325, 331.) Therefore, as it was not shown that the defendant had any knowledge that this boy was employed by the driver, it cannot be said that it permitted the employment.
Nor was there a violation of the duty cast upon the proprietor by the statute. Liability for the performance of an act inhibited, or the failure to perform an .act required, can only be. predicated upon responsibility for the act done or omitted, by the person himself, or by an agent or employee in his behalf, authorized or ratified.
Certainly the master’s responsibility for the servant’s crimes is not more liberal than that imposed in a civil action for his torts. We have recently stated, in the latter case: “ The true rule * * * is that a corporation is liable for torts committed by its officers or agents when acting within the actual or implied scope of their employment, or by ratification may become responsible for such acts when committed in excess of their authority.” (Kharas v. Collier, Inc., 171 App. Div. 388, 391.)
In People v. Hudson Valley Construction Co. (217 N. Y. 172, 179) the court said: “ The court properly charged that the corporation could act only through its officers and agents, and was amenable to the law for the acts of its officers and those of its employees of which it had knowledge.” The corporation in that case was held hable for larceny, by obtaining more money than was its due, by false representation, exaggerating the actual cost of the work. And the court further said: “ The proof permitted the jury to find that the wrongful acts attributed to the employees and agents of the defendant were performed in its service so methodically and
*625continuously as to indicate the sanction of the corporation.” The acts were performed in the service of and for the benefit of the corporation, and so methodically and continuously done that even if the acts were unauthorized, it was shown thereby that they were ratified by the corporation, for it must have had knowledge thereof. This case is not an authority for the : proposition that the corporation is liable to conviction for larceny if an employee steals for his own use and benefit, without the knowledge, acquiescence or connivance of the corporation.
The excise cases cited by Mr. Justice Shearn (People v. D’Antonio, 150 App. Div. 109; People v. Roby, 52 Mich. 577) in the last analysis rest upon the doctrine of respondeat superior. The excise statutes impose certain duties upon the licensee to do or refrain from doing certain acts, and those cases hold that the employer cannot escape liability for the failure to observe the statutory requirements by intrusting his business to others; for empowering them to conduct the business, or intrusting to them any detail thereof, he is responsible for their acts or failures; he having given them the power, is liable for the manner in which they execute it, irrespective of his knowledge or prohibition, because. they are acting within the actual or imphed scope of their employment in the conduct of his business. In the case at bar if the driver had authority, actual or imphed, to employ a person to assist him or to guard the defendant’s property, and he had employed this boy, the defendant could not have escaped liability, even if employment had been without the knowledge and against the express instructions that a boy under fourteen should not be employed.
In my opinion the majority of the court have failed to consider the fact that this driver was solely employed to deliver milk, collect for milk so delivered and account to the defendant. He was not authorized to employ any one. Employment of others in the defendant’s business was not within the actual or imphed scope of his employment. To hold the defendant hable is unreasonably extending the rule of criminal responsibility for the acts of others. It is said that other drivers of the defendant have employed boys and when discovered by *626inspectors of the defendant, and reported, they were not disciplined by fine or discharge. The misdemeanor with which this defendant was charged in the information was that it did willfully violate and omit to comply with section 162 of the Labor Law, in that it did employ and permit one Antonio Attilio, who is under fourteen years of age, to work in and in connection with a mercantile establishment of which it was proprietor. It is said while it may be that the evidence failed to establish employment by the defendant, that the fact that drivers other than Schmidt had employed boys, and the defendant had not disciplined them, might lead the drivers to .assume that they had the right to employ them, and thus the defendant was chargeable with having permitted them to work. But Schmidt testified that he could not tell whether other drivers hired boys. Evidently he did not predicate his right to employ this boy on any such information. In effect the defendant is being held hable, not for the employment of this boy, but for having known of other similar offenses. But as Mr. Justice Shearn has conclusively shown this offense being malum prohibitum, motive or intent is not an element of the crime. If the defendant permitted this boy to work, that is, with knowledge thereof allowed it, then it is guilty irrespective of motive or intent. Hence evidence of other similar offenses was not admissible, as tending to prove this specific misdemeanor. In People v. Hudson Valley Construction Co. (supra) the court at some length justifies the reception of other similar transactions on the ground that intent was an essential element of the crime. The vice of the reception of such evidence is that a defendant may be convicted, not of the particular offenses with which he was charged, but of other offenses, to which his defense has not been presented. In effect that is the position taken by the majority of this court; the conviction is justified not because it was proved that the defendant was guilty as charged, but because in other similar transactions its conduct was such that if it had known of this particular offense, it would have condoned it, and by such condonation ratified it.
In my opinion the law against the employment of children of the prohibited age or in the prohibited occupations should be stringently enforced. But I believe the end may be *627accomplished by prosecution of the guilty and not by overturning well-settled rules of law to hold one not within the letter of a penal statute to liability for the act of another who is clearly within its purview.
In my opinion the judgment should be reversed.
Judgments affirmed.