This is an appeal from a judgment entered on the dismissal of the complaint at' Trial Term. The plaintiff, a tenant of defendant, defaulted in the payment of her rent and was dispos
[1,2] At the close of. the case defendant moved for a dismissal of the complaint, on the ground that plaintiff had failed to show that the janitor was, at the time of the alleged assault and in connection therewith, acting within the scope of his authority. That motion was granted, and exception thereto duly taken. For the purposes of this appeal, the facts testified by plaintiff as to the assault must be deemed to be true. The only question in the case, therefore, is whether or not defendant is responsible for the assault committed, and this depends, upon whether or not the janitor was acting within the scope of his authority. The law is well settled in cases of this character, the only difficulty lying in the applications of the principles to- individual cases. In this case I think defendant responsible for the act of the janitor. What he did was done in the prosecution of defendant’s business, and in departing from his instructions in the manner of doing it did not relieve defendant from liability therefor. In Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361, the court says:
“The test of the master’s responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do. If the owner of a building employs a servant to remove the roof from his house, and directs him to throw the materials upon his lot, where no one would be endangered, and the servant, disregarding this direction, should carelessly throw them into the street, causing an injury to a passenger, the master would be responsible therefor, although done in violation of his instructions, because it was done in the business of the master. But should the servant, for some purpose of his own, intentionally throw material upon a passenger, the master would not be responsible for the injury, because it would not be an act done in his business, but a departure therefrom by the servant to effect some purpose of his own.”
To the same effect are Mott v. Consumers’ Ice Co., 73 N. Y. 547; Palmeri v. Manhattan R. Co., 133 N. Y. 266, 30 N. E. 1001, 16 L. R. A. 136, 28 Am. St. Rep. 632. The cases of Kennedy v. White, 91 App. Div. 475, 86 N. Y. Supp. 852, Weinstein v. Singer Mfg. Co., 121 App. Div. 708, 106 N. Y. Supp. 517, and McGrath v. Michaels, 80 App. Div. 458, 81 N. Y. Supp. 109, relied upon by respondent, are.
As the trial justice erred in dismissing the complaint, the judgment based thereon should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.