This action is not directly based upon the contract which is-involved in the duty of common carriers of passengers. The contract is to carry' safely the passenger, to compensate him for all1 injuries inflicted by the negligence of the servants of the carrier. It becomes a question whether the contract included an unjustifiable assault of a servant upon the passenger when the servant was not acting within the scope of his employment. The Court of Appeals-in the case of Stewart v. The Brooklyn and, Crosstown Railroad Company (90 N. Y., 588), held that the carrier was liable for the unjustifiable assault upon the passenger, when the servant, in that case a conductor, was not acting within the scope of his employment. The effect of the decision is to hold that a carrier’s servant is the carrier himself in respect to assaults committed xxpon the journey, and not to make an unjustifiable assault by a conductor a breach of contract. The contract calls for safe carriage, for civil and respectful treatment and for immunity from assaults by the carrier’s servants. If the servant makes an assaxxlt, the master is liable not for the breach of the contract, but for a wrong done to the passenger whose rights wex’e guaranteed by a contract. The case then falls under subdivision 3 of section 3228 of the Code. The action was one for damages for-an assault and battery, and his recovery was six cents. He was entitled, under that section, to the same amount of costs, *199and consequently was not entitled to be charged with the payment of costs.
The order should therefore be affirmed, with costs.
Pratt, J., concurred.Order refusing to vacate taxation affirmed, with costs and disbursements.