Catherine Peddie, Respondent, v. Leopold Gally, Appellant

Catherine Peddie, Respondent, v. Leopold Gally, Appellant. Second Department, November, 1905. Assault and battery by servant — evidence sufficient to show assault committed in course of employment. Proof that an assault and battery by defendant’s installment collector was committed in the course of his employment, is sufficient when the defendant testifies that his driver and the collector who committed the assault were the persons referred to in a. paragraph of his verified answer reading, “ while defendant, by his servants and employees, was removing said property,” and when" he also testifies that “ The bookkeeper informed me that they (the driver and collector)- were there; that is all the information I had.” Appeal by the defendant, Leopold Gajly, from a judgment of the County Court of .Queens county in favor of the plaintiff, entered in the office of the clerk of the county "of Queens on the 25tli day of June, 1904, upon the verdict of a jury for $500, and also from three orders entered in said clerk’s office on the 28th day of June, 1904, respectively denying the defendant’s motions to disr miss the complaint - and his motion for a new trial made upon the minutes. 1- Fred G. De Witt, for the appellant. James J.. Conway [B. J. Lyman with him on the brief], for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: ' The plaintiff has recovered damages- against the defendant to' the amount of - $500 for an assault and battery committed upon her by the defendant’s installment collector, one Boxer, on February 2, 1903. The undisputed evidence shows that Boxer called at the plaintiff’s rooms to collect an alleged balance due the defendant Upon a bedstead which the latter had sold to her and for which she claimed to have completed the payments. Boxer forced his way into her room, seized her, threw her down and kicked her. He then called in the defendant’s driver and removed the bedstead. Altogether he inflicted upon the plaintiff injuries for which the amount of the verdict is no more than adequate, and the judgment should be sustained if Boxer committed the assault in the course of his employment by the defendant. (Mott v. Consumers’ Ice Co., 73 N. Y. 543.) Any lack of proof in the plaintiff’s case on this, the only important, point, is amply supplied by the testimony of the defendant, who was his only witness. As to the authority of his collector, he merely testified that he had never given him instructions to go to the plaintiff ’s “ to get a bedstead or any other thing.” On his cross-examination, however, he admitted that his driver and ' Boxer were the two men referred to in his verified answer, paragraph 4, reading in part,, “ while defendant, by his servants and employees, was removing said property,” etc. And on the redirect examination he said: “ The bookkeeper informed me that they (Boxer and the driver) were there; that is all the information I had.” Obviously, the fair inference from his testimony and the pleading is that his servants were, authorized to go to the plaintiff’s rooms and take the furniture. It follows that the assault was committed in the course of the employment, and, no reversible error appearing, the judgment and orders should be affirmed, with costs. Present — Hirschberg, P. J., Woodward, Hooker, Rich and Hiller, JJ. Judgment and order of the County Court of Queens county unanimously affirmed, with costs.