(dissenting). The defendant on this appeal raises several questions. The one with which we are most concerned is the charge that the court erred in instructing the jury as a matter of law that Davies committed the wrongful acts of assault, false arrest and false imprisonment upon the plaintiff. The court did submit to the jury the issue whether such acts were committed within the scope of Davies’ employment.
I agree with the majority that it was error to so charge as a matter of law, but in the posture of this case and on the evidence presented I should hold it harmless error. There was ample testimony that the plaintiff was assaulted, falsely arrested and falsely imprisoned, nor was this testimony or the credibility of plaintiff’s witnesses as to the fact of the occurrence impeached, contradicted or discredited by cross-examination. Defendant offered no testimony but rested as it had a right to do on the plaintiff’s case.
We have then a trial record which as to the occurrence presents no disputed question of fact. Only the answer, a general denial, puts the fact of the occurrence in issue. The more important question whether the acts were done in the scope of Davies’ employment was submitted properly and resolved *331against the defendant, and there was evidence to support the conclusion so drawn.
It is asserted that the jury might have elected to disbelieve the testimony of the assault and thus reject the plaintiff’s claim.
While the finding or determining of the facts is within the jury’s province, the jury “ may not disregard the unimpeached, uncontradicted, and undiscredited testimony of an interested witness or party, and where it is apparent that it has done so, a verdict rendered by it will be set aside, if the evidence is material to the result.” (O’Leary v. Auburn & Syracuse Elec. R. R. Co., 188 N. Y. S. 714, 715; Denton v. Carroll, 4 App. Div. 532, 534.)
On the facts and as the ease was presented, to hold the charge reversible error warranting a new trial is, in my view, to exalt form over substance. I therefore dissent and vote to affirm.
Rabin, J. P., Valente, McNally and Eager, JJ., concur in decision; Stevens, J., dissents in opinion.
Judgment reversed on the law and a new trial ordered, with costs to abide the event.