This was an action for damages, for a hurt received by the plaintiff, in July, 1866, from the wadding of a cannon negligently discharged on board of a vessel or pleasure yacht (The Ram*298Bler) of the defendant, By one of its crew during the absence of the defendant. The signal of the Hew York Yacht Club was generally used on Board of such vessel, which indicated that she Belonged to the squadron of that Body, But there was no other evidence offered on the trial, of its Being so. On the occasion in question the gun was discharged about two or three o’clock in the afternoon of a day in July, 1866, while the vessel in question was Being-towed By a steamtug to her anchorage near Hoboken, where other yachts were lying. The plaintiff received the injury while on board of a ferryboat, passing Between the yacht in question and the shore.
A witness (Smith) testified on the trial that he has not often seen yachts come to their anchorage without firing a salute. It was usual for them to do so. It was customary, But-not always done. But he finally said that he knew nothing as to the custom in firing salutes. Some did it and some did not. Another witness (Morrill) only knew of such a custom up to 1859. The vice-commodore of such club squadron (Major), when the accident happened, testified that there was no rule of that club which had any Bearing as to firing salutes, and no universal custom By any means of firing guns By yachts while approaching their anchorage ; that it was a thing done By some persons and not By others; that yachts sometimes saluted on meeting and sometimes not. He also testified that the firing of salutes did “ not come under the scope of the general duty of a sailing-master that it did “not come under his supervision unless he had Been particularly requested so to do there was no duty of his as to firing salutes, except to obey the orders of his superior officer. A rule of the yacht club (No. 14), for setting colors in the morning and lowering them at sunset, when two or more yachts sailed in company or. were at anchor in sight of each other, was the only one as to firing guns. It prescribed that in such case the time for so hoisting or lowering colors should Be taken from the senior officer in command, and that no guns should “Be fired in setting or hauling down the colors, except By the yacht giving the time.” This was all the *299evidence on the trial as to the duty or any custom of firing guns on anchoring or meeting another yacht, or on any other occasion.
The mate of the yacht in question (Hoffman), who was examined as a witness for the plaintiff on the trial, testified that when the gun was fired he was getting the anchor ready, to drop it. That two years previously (being shortly after the yacht was built), because a man had been hurt by discharging such gun, the defendant gave general strict orders to all the crew not to fire any guns unless he was on board ; and again in the previous summer at New London, such orders were known to all on board of the boat. They had fired such a gun a dozen times when approaching such anchorage while the defendant was on board ; they sometimes fired it and sometimes not; they fired it off once or twice without the knowledge of the defendant. He was not on board at the time of the accident in question. This witness testified that he supposed the gun was fired to salute the yacht Wave, and not the tug-boat which blew its whistle ; and that they had orders not to use any wadding in firing guns. The plaintiff was injured by the wadding.
On the trial the defendant’s counsel moved to dismiss the complaint, which motion was granted; and the exceptions taken thereto, and those taken on the trial, were ordered to be heard, in. the first instance, at general term.
I have not been able to find any evidence in this case that the gun, the discharge of which caused the injury to the plaintiff, was fired in the course of any employment or duty of the master of the vessel in question. It was not necessary in the course of its navigation, or as a matter of duty to other vessels, or in compliance with any custom governing vessels in general in New York harbor, or yachts belonging to the New York Yacht Club Squadron, if the > vessel in question belonged to that squadron, or was bound by the rules of that club, of which there does not seem to have been sufficient evidence. So that the ground of the defendant’s liabilty is reduced to the question, whether, *300"by merely permitting the master of the vessel to have the possession and custody of the gun and ammunition with other equipments of the vessel, the defendant "became responsible for their careless use.
In the case of Lambt v. Lady Polk (9 Carr. & P., 629), the defendant was held not liable for the negligence of her coachman, who, after descending from his box, had, in turning aside the head of a horse harnessed to a van .which obstructed his passage, precipitated a box of mineral waters from such van upon the shafts of the plaintiff’s gig and broke them, because the act was not done in the course of the coachman’s employment for the defendant.
In the case of Mitchell v. Crassweller (13 Com. B., 237, 16 Eng. L. & Eq., 448) it was held that for an injury done by the negligence of the defendant’s carman to a third person, in driving his employer’s horse and cart, for his own private purpose, after the time when he should have, and usually did, put up such horse and cart in their stable, the employer is not responsible.
In the cases of Joel v. Morrison (6 Carr. & P., 501), and Sleath v. Wilson (9 Id., 607), it was conceded that if a servant drives for his own purposes his master’s carriage, without leave, during the time it is not in use for the business of the latter, the master is not liable for any injury caused by its means, while so driven, although, in both, it was held that if, while driving for his master’s business, the servant merely makes a detour for his own purposes, his master is responsible for his negligent driving during such deviation. That distinction is made in both cases to rest on the fact that, in the latter event, the master has enabled the servant to do the injury, by the mismanagement of the carriage while intrusted with its use for the master’s benefit.
That doctrine would apply in this case, if the sailing-master had injured a person or vessel by careless navigation of the vessel-under his charge. But the mere possession and control of the gun and ammunition could not create or imply permission, much less authority or duty, to use them in the face of the positive orders of the defen*301dant to the contrary. It could not he any part of the duty of sailing or taking charge of the vessel to discharge signal guns or give salutes ; and there was no evidence-of a uniform custom on the part of the vessel in question, or of any other yachts, or of any regulation to that effect in the squadron to which it was supposed to belong, to make this a part of the ordinary employment of the sailing-master.
I apprehend there is no difficulty in a general limitation of the extent of the employment of a servant, by agreement or command, so as to prevent him from doing acts of a particular character. It is true that the prohibition of specific acts within the scope of a general employment on a particular occasion only, or of a particular mode of doing them, may not exempt the employer from liability . But prohibiting their being ever done must certainly curtail the extent of the employment; and the language of Justice Story (Agency, 452), in declaring the liability of a principal, notwithstanding his prohibition of the acts of his agent, by which third parties are injured, must be construed in that sense. The case of the Philadelphia & Reading R. R. Co. v. Derby (14 How. U. S., 295), also can only extend that far, otherwise it is contrary to several of the very cases cited in the opinion then delivered.
I am not aware of any principle which justifies the use by a party of a prior written statement of a witness of such party, to instruct him what to say, under pretext of refreshing his memory, when he has not shown any weakness of recollection. The case of Guy v. Mead (22 N. Y, 462), cited for the purpose, does not sustain any such proposition; and the attempt to do it on the trial was properly prevented. I do not understand the question put to a witness as to the extent of the orders given by the defendant as calling for his construction of their language, but his recollection of it. He had not previously undertaken to give their precise words. It was therefore properly admitted.
There being no error committed on the trial, the exceptions should be overruled, and judgment given for the *302defendant, dismissing the complaint on the merits with costs.
Monell, J., concurred.