The gravamen of the cause of action set forth in the complaint is an alleged assault made by the defendant, and so the action is for assault, and under the statute the Municipal Court is without jurisdiction. Mun. Ct. Act, § 1; Fister v. Metropolitan St. R. Co., 30 Misc. Rep. 430. It does not appear, in Hart v. Metropolitan St. R. Co., 34 Misc. Rep. 522, that the attention of the appellate court was called to the question of jurisdiction. At the trial there was evidence that plaintiff, while a passenger on defendant’s car, was assaulted by defendant’s conductor. A complaint could have been framed according to this evidence against the defendant for-damages for breach of contract, and of such an action the Municipal Court would have had jurisdiction, for the assault, according to the evidence, was not that of the defendant, but solely that of the conductor, for it did' not appear that the conductor acted in the course of his work and within the scope of his employment. There is an implied contract on the part of a common carrier that its employees will not subject the passengers to unlawful violence, and when an employee does so subject a passenger he has a right of action for breach of contract, in which compensation for the injuries caused by the assault will ordinarily be the measure of damages. In view of the fact that all evidence bearing upon the doings of the plaintiff and the conductor at the time in question, which the parties were able to present, was received, and that according to the justice of the case, without regard to technical errors or defects, which do not affect the merits, the complaint can be amended so as to conform to the proof and the amendment will be in support of the judgment. The com*677plaint is amended, accordingly, and the judgment will be affirmed, with costs. Section 166 of the Municipal Court Act requires the court to allow a pleading to be amended at any time if substantial justice will be promoted thereby (See also Shirtcliffe v. Wall, 68 App. Div. 375; Hawkes v. Burke, 34 Misc. Rep. 189), and section 326 extends that requirement by implication to the appellate court.
Scott, J., concurs.