In this action for false arrest, assault and battery, and negligence, the jury’s verdict in favor of the plaintiff-appellant in the sum of $50,000 was set aside and the complaint dismissed. The evidence relative to liability is as follows: John W. Nelson, who was a probationer with the Police Department from June 16 to November 20, 1951, an acquaintance of the defendant Flynn, testified that on April 14, 1953, at midnight, at a bar and grill, he had a talk with the defendant Flynn during which the latter informed Nelson that he had become a permanent member of the Police Department, whereupon Nelson congratulated Flynn. Nelson then said to Flynn ; “ I asked him if he would be interested in them (narcotic leads) because I thought, if he would make the arrest, he would look good as far as he was concerned on his record. There might be a promotion for him.” Flynn responded that he was interested in such leads. Thereafter, Nelson and defendant started to make the rounds of various places in The Bronx, chiefly all-night diners and bars.
*38About 6:00 a.m. on April 15, Flynn and Nelson entered Freddie’s Luncheonette located at the intersection of 168th Street and Boston Road in the borough of The Bronx. As they approached Freddie’s Luncheonette, Nelson said to Flynn: “I told him to be particularly careful there because some of the fellows in there I had known by sight, I knew none of them personally, but I had known some of them by sight because I had' worked in that precinct, and for him to keep his eyes open because there were a few there that might be kind of cagey.” Upon entering Freddie’s Luncheonette, Nelson proceeded to the back to make a telephone call. While in the telephone booth Nelson heard loud voices and he heard Flynn say: “I’m a police officer *" * * this is a gun and I know how to use it. ” Nelson also heard plaintiff ask “ why he (Flynn) was bothering him.” Nelson rushed out of the telephone booth and forced his way through the crowd which had gathered, and before he could get to Flynn heard the report of a revolver. Nelson then saw the plaintiff lying on the floor bleeding profusely and that Flynn “ had the gun in his hand.”
Flynn’s examination before trial, read into the record by. plaintiff, established: On April 15, 1953, he was a policeman in the employ of the City of New York. On the morning of said day he visited Freddie’s Luncheonette. He was then off duty. At Freddie’s Luncheonette he searched the plaintiff for narcotics. While searching the plaintiff, Flynn’s gun went off. The plaintiff had offered no resistance to the search. Flynn had no intention to shoot, although he had his finger on the trigger. Flynn was not assigned to the narcotic bureau.
Norwood McMillan, a guest in the diner, testified that on the morning of April 15, 1953, he was in Freddie’s Luncheonette. He observed Flynn seat himself beside the plaintiff and start to go through plaintiff’s pocket. He heard plaintiff say: “ Do you know me, young fellow! If you don’t leave me alone.” McMillan then observed Flynn stand up, reach into his pocket, pull out his gun and place it against plaintiff’s back. He heard plaintiff say: “ Somebody, please tell this man to leave me alone. I’m not bothering anyone.” McMillan then saw Nelson approach Flynn and heard Nelson say to Flynn: “He’s not bothering you. He’s just drinking coffee.” Flynn responded: “I’m not paying any attention to you. I’m going to search him. ’ ’ Flynn then directed plaintiff to stand up with his back towards his gun. The gun was cocked; as Flynn swayed back and forth, the gun went off. McMillan did not hear Flynn say that he was a policeman.
*39Fay Feaster, another patron, testified that he witnessed the occurrence and stated the circumstances substantially as had McMillan. Feaster heard Flynn say to the plaintiff: ‘ ‘ See this, this is a gun. * * * See the trigger, the trigger is cocked. Put your hand up.” He also testified that he did not hear Flynn state that he was a policeman.
Plaintiff testified that on April 15, 1953, he was 46 years of age, married, that he then and for about one year prior to the occurrence had owned and operated a luncheonette at Boston Road and 167th Street. The hours of operation of the luncheonette were from 6:00 a.m. till about 5:00 p.m., seven days a week. Prior to the luncheonette business, plaintiff for about eight years had been a cab driver. On the morning of April 15, 1953, plaintiff, as on prior occasions, went to Freddie’s Luncheonette for a cup of coffee. He seated himself at a stool; defendant Flynn was seated next to him. Plaintiff testified that Flynn put his arms around him and then started to search him. "When Burns protested, Flynn responded: “ You feel that in your back. That’s a gun stuck in your back.” Thereafter, while he was being searched, the loaded gun went off causing the injuries complained of. Plaintiff did not recall that Flynn told him that he was a policeman. Plaintiff’s testimony is that Nelson was seated on a stool next to Flynn at the time of the occurrence, although Nelson’s testimony is that he was in a telephone booth at the time.
Plaintiff read the deposition of Timothy G-assett, a policeman assigned to the 42d Precinct, who attended the scene of the occurrence in his official capacity immediately after the event, who identified Flynn as being present at Freddie’s Luncheonette after the occurrence.
Sergeant James J. Collins, assigned to the 42d Precinct, testified that he attended Freddie’s Luncheonette on the morning of April 15,1953, in response to a radioed direction to do so. He testified that Flynn was assigned to the 48th Precinct whereas the occurrence took place within the 42d Precinct. Flynn told Collins: ‘‘ This is the result of the apprehension and search of a suspected person.”
It is uncontradicted that on April 14, 1953, Flynn was assigned to the 48th Precinct. Flynn had performed a tour of duty from 8:00 a.m. to 4:00 p.m., and was not required to return to duty until 4:00 p.m. of April 16, 1953. Flynn’s probationary period had ended on April 13,1953. Flynn had been assigned to Post 42; Freddie’s Luncheonette was 2½ miles away from Flynn’s post. Flynn was a member of the patrol force which *40is charged with the duty of patrolling public streets, parks and thoroughfares. Uniformed police are required to report suspicious acts and circumstances on their posts to their superiors. Information regarding narcotic law violations was required to be reported by a uniformed policeman to his commanding officer, who was required to forward it to the narcotic bureau.
Appellant adverts to section 154 of the Code of Criminal Procedure which defines peace officers and includes within the definition a policeman of a city; also sections 177, 179 and 180 of the code which specify the occasions on which an arrest may be made without a warrant. None of said provisions of the code justifies the arrest here made. Section 435 of the Charter of the City of New York, also relied on by appellant, imposes the duties of preserving peace and preventing crime upon the “police department and force.” No. 155 of the Rules and Regulations of the Police Department substantially repeats the general obligation of the Police Department and force as set forth in section 435 of the charter. No. 157 of the Rules and Regulations requires a member of the force to be subject to duty at all times; and No. 288 of the said Rules and Regulations requires a member of the force to carry a revolver at all times.
The view of the evidence most favorable to the appellant establishes that on the morning of April 15, 1953, at premises of Freddie’s Luncheonette in the borough of The Bronx, after completion of a tour of duty at 4:00 p.m. of April 14, 1953, and with no official assignment until April 16, 1953, the defendant Flynn, upon information furnished to him by Nelson to the effect that Freddie’s Luncheonette was frequented by narcotic law violators, instituted a search of the person of the plaintiff and in the course of said search, without provocation on the part of the plaintiff, shot and injured him. This aspect of the testimony resolves all questions involving the admission of evidence in favor of the appellant. There is no evidence that plaintiff was suspected of the commission of or involvement in any crime and by no conceivable standard can the search and arrest of the plaintiff be justified. The record is devoid of evidence of any emergency referable to any obligation on the part of the defendant Flynn as a police officer or a private citizen to act in the circumstances. In short, there is no basis whatever for a holding that any one of the acts performed by defendant Flynn on April 15,1953, at Freddie’s Luncheonette, in the borough of The Bronx, was within the scope of his employment as a policeman of the City of New York. Having failed to establish an act within the scope of Flynn’s employment, there is no liability on the part of the respondent City of New York in respect of *41the occurrence here involved. Vicarious liability of the kind here involved must be grounded on the employee’s authority to act in the circumstances, and upon acts within the scope of the authority. (Rounds v. Delaware, Lackawanna & Western R. R. Co., 64 N. Y. 129, 134.) That the act was indiscreet or in excess of authority may not preclude liability if it be related to the general scope of the employment. However, the authority and duty to act at the time of the occurrence must be present. At the time of the occurrence, Flynn was not acting as a policeman in the employ of the respondent; he was a volunteer sleuth motivated by personal considerations wholly unrelated to his duties and obligations as a member of the uniformed police of the respondent.
In Sauter v. New York Tribune (305 N. Y. 442) the defendant ’s truck driver kicked the plaintiff because he was endeavoring to copy the registration number of the truck after it had collided with plaintiff’s bus. Although at the time of the occurrence the truck driver was in the employ of the defendant, the specific act of kicking the plaintiff, under the stated circumstances, was held to be beyond the scope of his employment, and the complaint was dismissed against the employer. In the instant case, at the time of the occurrence, Flynn was off duty, and not required to report until April 16, 1953; he had no official responsibility; there was no evidence of any emergency, breach of peace, or the commission of crime, or threatened harm to person or property. Flynn’s then employment by the respondent was a coincidence of no more probative effect than if he had been employed by another, insofar as its relevance on the vicarious liability of the respondent.
Sims v. Bergamo (3 N Y 2d 531), Osipoff v. City of New York (286 N. Y. 422), and Brown v. City of New York (279 App. Div. 741), relied on by the appellant, are beside the point. Sims and Osipoff involved employees who in discharging duties related to their employment at the time of the occurrences did so imprudently and with unnecessary and excessive force. In Brown v. City of New York (supra), immediately prior to the occurrence the detectives heard a woman scream, which apprised them of an emergency indicating the desirability of their intervention. There an apparent emergency served to reactivate the detectives, who at the time were off duty but were proceeding to the 4th Precinct house at Varick and Beach Streets in the borough of Manhattan. In the case at bar, no circumstances are present indicating any emergency reactivating or recalling Flynn to duty in his official capacity.
*42In Pacheco v. City of New York (11 Misc 2d 80, affd. 285 App. Div. 1031), where the police officer shot and injured the plaintiff, this court affirmed a dismissal of the complaint against the City of New York. There, the trial court properly found, that, in the absence of any evidence of a violation of law, there is no official duty imposed on a member of the force who is off duty. Plaintiff’s contention there was that he was in the custody of the detective, who shot him, for the purpose of questioning. Nevertheless, the court held that, in the absence of proof of any violation and in the light of circumstances indicating that the plaintiff and the detective were carousing, the plaintiff had failed, as a matter of law, to establish that the detective was in the performance of his duty as a police officer. Here, likewise, there was no proof of any violation or suspicion thereof and at best the activities of Flynn were those of an amateur detective, voluntary and outside the scope of his employment and authority as a uniformed policeman who had just completed his probationary employment.
It has been assumed all of the evidence adverted to is available to the plaintiff on this appeal. The fact is otherwise. Nelson’s testimony of his conversation with Flynn, and Flynn’s pretrial testimony that he was looking for narcotics, were admitted solely against Flynn, without objection on the part of the plaintiff. The same is true in regard to Flynn’s statement to Sergeant Collins after the shooting that “ this is the result of the apprehension and search of a suspected person.” On this state of the record there was no evidence before the jury establishing that the occurrence was within the scope of Flynn’s employment. (Cf. Creem v. Fidelity & Cas. Co., 132 App. Div. 241, 248.) The said evidence was properly excluded as to the respondent. Nelson’s testimony was hearsay. Flynn’s statement after the event was exculpatory and not spontaneous; his declaration or admissions are inadmissible to establish his authority or the scope thereof. (Turner v. Northwestern Mut. Life Ins. Co., 232 N. Y. 171, 175; State Bank v. Brocton Fruit Juice Co., 208 N. Y. 492, 495; Taylor v. Commercial Bank, 174 N. Y. 181, 191; Schner v. Simpson, 286 App. Div. 716; Kelly v. United Pressed Beef Co., 249 App. Div. 586; Golden v. Horn & Hardart Co., 244 App. Div. 92, affd. 270 N. Y. 544; Molino v. City of New York, 195 App. Div. 496; Leary v. Albany Brewing Co., 77 App. Div. 6, 9, 10.) Moreover, said evidence served to demonstrate conclusively a violation of paragraph 39 of article 12 of the Manual of Procedure of the Police Department, requiring members of the force to transmit to their commanding officer information as to violations relating to narcotics. In so violat*43ing the manual, Flynn was acting contrary to, rather than within, the scope of Ids authority.
The judgment should be affirmed.
Breitel, J. P., and Rabin, J., concur with Stevens, J. ; McNally, J., dissents and votes to affirm in opinion.
Judgment so far as appealed from reversed upon the law and the facts and a new trial ordered as to defendant, the City of New York, with costs to the appellant.