On all the evidence in this case a fair question of fact was presented to the trial court as to whether the defendant, city, should be held liable for the actions of the defendant, Hacker, leading to the discharge of the revolver, which he says was purely accidental.
I agree that the testimony of the defendant, Hacker, was equivocal, uncertain and at times contradictory. This is attempted to be explained on the basis of the excitement which followed the shooting and which clouded his memory as to the details of what took place. The plaintiff, having been out of the room when the gun was discharged, cannot be expected to give evidence of what defendant, Hacker, was doing with the gun when it went off.
It is plaintiff’s theory that the city is liable for the injuries which she suffered because of the negligent carriage and handling of his revolver by a policeman who is required to carry it at all times, even when off duty. It was on this theory that the trial court found for the plaintiff and its verdict should not be disturbed. The individual defendant, a probationary policeman for one month, had no right to take his gun out of the holster and to handle it in the manner in which the evidence shows he did. He was clearly careless and negligent. We are not dealing with a case where there was a purposeful shooting occurring during personal quarrels, brawls or other personal conduct of policemen divorced from acts relating to their employment.
As was stated in Collins v. City of New York (11 Misc 2d 76, 79, affd. 8 AD 2d 613, affd. 7 N Y 2d 822): “The instant circumstances demonstrate that the defendant policeman though technically within the' off-duty classification was engaged in the execution of a function specifically prescribed by the defendant employer the City of New York and the careless or negligent performance of such duty—carrying a gun—nonetheless constituted performance of a requirement of his employment and *405in furtherance of Ms employer’s interest. The employer is therefore responsible for the consequences of such acts.” (Also, see, Peer v. City of Newark, 71 N. J. Super. 12; Rives v. Bolling, 180 Va. 124.)
I agree with the trial court’s finding that “ there was no substantiation to the city’s contention that the accident happened in a manner different than alleged by the plaintiff. To find otherwise would be a premise based on speculation.”
It may be noted that the defendant, Hacker, was discharged from the Police Department after he pleaded guilty to charges brought against him by the defendant, city, based on allegations of negligence in the care and handling of his gun. (Collins v. City of New York, supra.)
I dissent and vote to affirm the order and judgment as amended, and to remand the case for an assessment of damages, in accordance with the order and judgment of the trial court.
Rabin, J. P., McNally and Steuer, JJ., concur with Stevens, J.; Capozzoli, J., dissents in opinion.
Order and judgment reversed on the law and on the facts, and the complaint dismissed as to the City of New York, with $50 costs and disbursements to the appellant.